bluuebunny/crossref_metadata_2025 huggingface dataset:
Have China’s FDI Policy Changes Been Successful in Reducing Its FDI Regional Disparity?
Authors: Xin Xian , Yu Kang , Tan Xiangyong
Published: April 2022

From the very beginning of China’s open door policy in 1979, China’s preferential FDI polices have generally favored the coastal provinces, which has led to a pronounced regional disparity in FDI. Since 1992, the Chinese government has implemented a series of polices to reduce FDI regional disparity and diversify inward FDI to Western and Central provinces. This article uses a regression–based approach to assess the contribution of China’s preferential FDI policy changes toward FDI regional disparity. Our results suggest that the contribution of China’s regionally preferential FDI polices in inward FDI disparity decreased from 24 percent in 1990 to 13 percent in 2005. China’s preferential FDI policy changes dominate all the other factors in reducing China’s inward FDI regional disparity during this period.
Free Movement of Labour: UK Responses to the Eastern Enlargement and GATS Mode 4
Authors: Persin Daniela
Published: April 2022

This article asks why the United Kingdom made a slightly below–the–EU–average offer on the free movement of persons as part of the first EU offer to the GATS 2003, but then in 2004 chose not to limit the free movement of labour from the new Member States of the EU as most other ‘old’ Member States did. The main argument is that the policy choices reflect the aim of the UK government to retain flexibility in and external sovereign control over labourlabour immigration policies. This allows it to maintain flexible labour markets within the UK and the extended EU Internal Market.
Australia’s Extended Producer Responsibility for Portable Consumer Batteries: Conflicting or Reconciling Trade and Environment Obligations?
Authors: Alam Shawkat , Brown Jennifer
Published: April 2022

The article focuses on the Australian portable consumer battery market to consider whether the globalization that has fostered world trade can also deliver a sustainable product. Extended producer responsibility (EPR) is a tool used by many governments to deliver such outcomes. With increased portable consumer battery consumption and greater dependence on portable technologies, EPR could be a way to achieve sustainable battery consumption. In the course of the discussion the article explores the nexus between trade and environment regimes. This is because the Australian market is largely supplied from overseas battery manufacturers. Given current trade flows in electronic waste these countries could also be the destination for battery wastes. The article considers whether Australia can navigate these two regimes in order to apply an EPR measure on portable consumer batteries. It examines the existing Australian hazardous waste framework and concludes with suggestions as to how the framework could be improved.
Human Rights and the WTO: Are They Really Oil and Water?
Authors: Konstantinov Boyan
Published: April 2022

It is remarkable how many critiques of the approach of the World Trade Organization (WTO) to human rights include the phrase: ‘WTO should ?’. In many cases WTO actually ‘shouldn’t’ because even if it ‘would’ it ‘couldn’t’. With the exception of the Dispute Settlement Procedures (DSP) the WTO does not really have an independent institutional decision–making power. It is nevertheless true that this international forum of free trade has remained remarkably conservative regarding human rights even after the end of ‘the General Agreement on Tariffs and Trade (GATT) years’ and the establishing of the WTO. Many scholars accuse the WTO of organizational isolationism and advocate for overcoming this practice. Criticism focuses especially on the apparent non–responsiveness of the organization to human rights issues – despite the huge impact free trade has on such matters – and unwillingness to discuss human rights, or cooperate with international agencies that protect them. In present days, the International Bill of Rights is commonly recognized as a human rights standard. Human rights are mainstreamed in the EU body of law, as well as soft law documents such as the Millennium Development Goals (MDG) and the UN Agenda for Development. Recently, they are incorporated in the organizational statues and programme methodologies of institutions such as the World Bank (WB) and the International Monetary Fund (IMF). The WTO seems to stay away from this process. We aim to explore the reasons for this conservative attitude of the WTO towards human rights, while trying to establish historical parallels with the gradual adoption of human rights as core standards in other international entities such as the European Union. We attempt to tackle the relationship between WTO membership and the human rights situation in its Member States and the possible implications that continuing admission of non–democratic countries – e.g., Russia – might have. We also explore the understanding of some scholars that human rights are ‘seeping into the WTO system’ – and briefly analyze some examples that could illustrate this process.
Mobility of Less-Skilled Workers under Bilateral Agreements: Lessons for the GATS
Authors: Chanda Rupa
Published: April 2022

Temporary cross-border movement of service providers is a form of trade in labour services. The General Agreement on Trade in Services (GATS) provides a framework for liberalizing such trade flows. There has, however, been little progress in the GATS negotiations on movement of service providers or mode 4, especially with regard to low-skilled movement. This is in contrast to several bilateral arrangements that cover low-skilled labour mobility. This article outlines the desirable characteristics of selected bilateral labour agreements that facilitate the movement of low-skilled workers. It argues that the GATS mode 4 negotiations could draw upon these desirable features to improve market access commitments for less-skilled service providers while also addressing host country sensitivities. It outlines possible ways of incorporating these features into the GATS framework of commitments and limitations.
Permanent Group of Experts under the SCM Agreement
Authors: Kazeki Jun
Published: April 2022

This article examines the Permanent Group of Experts (PGE) that has been established by the Committee on Subsidies and Countervailing Measures (SCM Committee) under Article 24.3 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement). World Trade Organization (WTO) Members have been actively engaged in the election process of the experts since 1996, and they often refer to the PGE as an example of a consulting or assisting body in the context of rulemaking. However, very little is known about the reality of the PGE except for the fact that the body has never been consulted or utilized. The article hopes to contribute to deepening understanding of the PGE and its process for the election of experts by describing the past experience in the SCM Committee. It draws practical lessons from the experience for the future decision making of the WTO bodies, including the importance of gradual and wider participation in the process as well as the need for careful institutional building in rulemaking.
Is Australia’s EAP a Prohibited Export Subsidy?
Authors: Boyd-Wells Victoria , Feaver Donald , McGoldrick Will
Published: April 2022

The Carbon Pollution Reduction Scheme (CPRS) is the centrepiece of Australia’s climate change policy. It requires that all major emitters of greenhouse gases (GHGs) hold a permit for every tonne of GHG that they emit each year. Although the CPRS is designed to have a broad economy-wide coverage, a particular class of emitter is given special treatment. Emitters that qualify as being ‘emissions-intensive trade-exposed’ (EITE) entities are eligible to receive free emissions permits under a component of the CPRS known as the EITE Assistance Program (EAP). The objective of this article is to examine whether the allocation of free emissions permits under the EAP is policy measure that constitutes a breach of Australia’s international obligations under the World Trade Organization (WTO) Agreement on Subsidies and Countervailing Measures (hereinafter ‘SCM Agreement’) and the Kyoto Protocol to the United Nations Framework Convention on Climate Change (hereinafter ‘Kyoto Protocol’). The EAP is explained and subsequently examined in relation to Australia’s commitments under the WTO SCM Agreement to determine whether the EAP constitutes either a prohibited export or an actionable subsidy. A further question considered is whether an affirmative subsidization finding under the SCM Agreement is evidence of a breach of Article 2.1(a)(v) of the Kyoto Protocol. There is a strong likelihood that the EAP constitutes a violation of both obligations.
Assessing the Market Openness Effects of Regulation in India: An Overview of Emerging Trends and Policy Issues
Authors: Chaturvedi Sachin , Mohanty S.K.
Published: April 2022

Though since 1991, India has been actively pursuing liberalization in external sector, including regulatory processes; however, still there are many initiatives which are to be taken to their logical end. The paper has identified some of the trade-related sectors, which require urgent attention of the policy makers. These sectors include government procurement, trade facilitation, and mutual recognition agreements (MRA) for implementation of sanitary and phytosanitary (SPS)-related provisions. Policy reforms in these areas may further help in rationalizing India’s continuously expanding frontiers of new free-trade agreements (FTAs) with that of multilateral commitments. It may also provide further fillip to the idea of reducing transaction costs for the external sector.
An Appraisal of the South Asian Free Trade Agreement and Its Consistency with the WTO Rules on Preferential Trade Agreements
Authors: Islam Md. Rizwanul
Published: April 2022

This article critically analyses the main features of the Agreement on South Asian Free Trade Area (SAFTA). As a preferential trade agreement (PTA) concluded among WTO members, the SAFTA must comply with the WTO rules on PTAs. This article finds that the SAFTA has flouted with the requirement of timely notification to the WTO. Even though the Agreement complies with the discreet requirements of the Enabling Clause, its shallow internal trade liberalization scheme would not have complied with Article XXIV of the GATT.
Linking International Trade and Labour Standards: The Effectiveness of Sanctions under the European Union’s GSP
Authors: Cuyvers Ludo , Zhou Weifeng
Published: April 2022

Linking international trade and labour standards is one of the ways to make countries comply with their international obligations to respect core labour standards. Under the European Union’s Generalized System of Preferences (EU’s GSP), trade preferences of Myanmar in 1997 and Belarus in 2006 were withdrawn for the use of forced labour and for violations of the freedom of association. This paper highlights the EU’s GSP scheme and idea of linking EU trade policy to core labour standards. Based on two case studies, we investigate the trade effects of the EU sanctions on the target country and analyse the effectiveness of the EU’s GSP sanctions. We find that using the EU’s GSP regime to sanction countries which violate the core labour standards has very limited effectiveness. However, sanctions can be an effective way to demonstrate the political commitment to a particular set of values and norms such as core labour standards. Sanctions may also deter other countries from committing violations.

If Europe must have a stronger social dimension, so should its trade policy.

– Former EU Trade Commissioner Peter Mandelson
Chinas Uncharted FTA Strategy
Authors: Qingjiang Kong
Published: April 2022

China is embracing free trade agreements (FTAs).This article tries to probe into whether China has an FTA strategy, presuming that launch of FTAs emanates from the interaction between the decision-making mechanism in the trade area and the potential limits of the guiding principles. It argues that China will likely keep concluding more FTAs to weave an FTA net once technical evaluations lead to positive indicators for FTA negotiations. However, China's complicated structure of trade policy-making mechanism may also hinder its ability to conclude, especially when the bureaucratic actors are not in a position to evaluate the ripeness of the timing for a launch of FTA negotiations with a particular country in terms of the political considerations involved.
Trade Facilitation in ASEAN and ASEAN+1 FTAs: An Analysis of Provisions and Progress
Authors: Wong Marn-Heong , Pellan Marie-Isabelle
Published: April 2022

Regional trade agreements concluded in recent years have increasingly included provisions on trade facilitation. Although ASEAN 1 FTAs vary in their scope, specificity and depth of commitments on trade facilitation, they tend to cover several core areas and affirm the application of international agreements, standards and instruments. A review of trade facilitation performance through a constructed Core Trade Facilitation Index shows that there are great disparities among ASEAN countries and their FTA partners. In considering the treatment of trade facilitation in a regional comprehensive economic partnership between ASEAN and its dialogue partners, attention could be given to defining a consistent set of trade facilitation principles, adopting specific measures, monitoring performance, implementing capacity-building measures and keeping abreast of developments in multilateral negotiations on trade facilitation.
Could Least Developed Countries (LDCs) and Other Developing Countries Which Have Not Been Able to Establish Legal Framework for the Application of Trade Remedy Measures Make a Beginning by Establishin
Authors: Kisiri Marwa , Manyara Elijah , Baafi Nyame , Bizimuremyi Edward
Published: April 2022

The rule based multilateral trading system created by World Trade Organization (WTO) recognizes that in pursuing liberal and open trade policies, countries may have to use trade remedy measures such as anti-dumping countervailing or safeguard measures in cases where their domestic agricultural producers or manufacturing industries are hurt or injured by imports.

However, such trade remedy measures can be applied only after investigations undertaken in accordance with the detailed rules laid down by the Agreements on Anti-dumping Practices (ADP), Subsidies and Countervailing Measures and on Safeguards, it is established that increased imports are causing injury to the domestic agricultural producers or industry. As a result, over sixty developing countries, most of which are least developed or countries at lower stages of development, which have not been able to establish such framework because of financial and other constraints are not able to make effective use of the rights which these Agreements provide.

The paper suggests that in the situation, the least developed and other developing countries which have not been able to establish legal and institutional framework for applying all of the three trade remedy measures, should be permitted to apply only safeguard measures, which from the administrative point of view would require only modest staff, by adopting an Understanding.

It is also in this context important to note that after the conclusion of the Doha Round, all developing countries would be able to apply to agricultural products, special safeguard measures if the price of imports falls below specified price trigger or their volume exceeds specified trigger, irrespective of whether the imported goods which are causing injury are being dumped or being subsidized. The need to apply safeguard measures in accordance with the provision of the Understanding clarifying the rules of the Safeguard Agreement would arise only in a few cases of manufactured products where domestic industries complain that the increased imports are causing serious injury to them.
Vietnams Experience in Developing International Trade Lawyers Following Five Years of World Trade Organization Accession
Authors: Le Toan
Published: April 2022

(Research shows the development of institutional and legal capacity is important in managing World Trade Organization (WTO) participation. Vietnam, an emerging economic power in Asia, is expected to face increasing legal challenges in the WTO dispute settlement forum. This article examines Vietnam's experience in developing its legal capacity and critically assesses Vietnam's capacity to develop indigenous legal capacity in WTO law. A conclusion is formed that building capacity is technically and politically difficult for small nations like Vietnam. On the basis of the research conducted, this article is able to recommend three measures and strategies the government could employ to strengthen its legal capacity).
In the Shadow of the DSU: Addressing Specific Trade Concerns in the WTO SPS and TBT Committees
Authors: Horn Henrik , Mavroidis Petros C. , Wijkström Erik N.
Published: April 2022

The article argues that focusing only on disputes formally raised in the World Trade Organization (WTO) Dispute Settlement system underestimates the extent of trade conflict resolution within the WTO. Both the Sanitary and Phytosanitary Measures (SPS) and Technical Barriers to Trade (TBT) Committees address a significant number of 'specific trade concerns' (STCs) that in the overwhelming majority of cases do not become formal disputes. The STCs address differences between Members concerning the conformity of national measures in the SPS and TBT areas with these agreements. It appears as if Committee work on STCs significantly helps defuse potential trade frictions concerning national policies in the covered areas.
Trade Capacity Building in the WTO: Main Achievements since Doha and Key Challenges
Authors: Smeets Maarten
Published: April 2022

This contribution reviews the WTO's achievements in the field of trade capacity building since the launch of the Doha Development Agenda (DDA) in 2001, and discusses the key challenges. The DDA has clearly created a strong footing for the delivery of the WTO's trade capacity building programmes. The evidence suggests that the beneficiaries are now much better equipped to address the challenges of the Multilateral Trading System (MTS), to take active part in the negotiations, define their strategic objectives and defend their economic and trade interests. There is no room for complacency, however, as key challenges remain to be addressed. Human and institutional capacity building remain a priority for developing countries, and irrespective of the outcome of the DDA negotiations.
Marginal Consumers, Marginalized Economics: Whose Tastes and Habits Should the WTO Panels and Appellate Body Consider When Assessing Likeness?
Authors: Iacovides Marios C.
Published: April 2022

In Philippines - Distilled Spirits, the Appellate Body of the WTO reaffirmed that the determination of 'likeness' in the GATT should be about the competitive relationship between products. A coherent methodology for the determination of 'likeness' has finally begun to emerge, with the same methodology having been adopted in the GATS (Panel Report , China - Electronic Payments) and the TBT Agreement (Appellate Body Report, US - Clove Cigarettes). Yet, mainstream as the adoption of competition law methodology for the finding of 'likeness' may have become as of recent, its implementation by the adjudicating bodies of the WTO is still inadequate, as demonstrated by the disputes examined in this article. One recurrent problem is the choice of whose consumers' tastes and habits to take into account in the determination of 'likeness'. As shown in the article, competition law has had to deal with the same problem and has developed ways to address common fallacies arising out of relying on evidence regarding the choices of groups of consumers without the groups having been shown to be economically significant. The analysis suggests that the shortcomings of the application of competition law methodology at WTO dispute settlement can be easily addressed in the short-term by raising the awareness of the WTO Members, panels, and the Appellate Body to them, and by turning to competition law for readily available solutions, while increasing the institutional capacity of the adjudicating bodies of the WTO in the long-term.
Agricultural Value Chains and Food Security
Authors: Dixit Diwakar
Published: April 2022

This article attempts to look at the theme of food security through a powerful contextual framework of global value chains. Both these themes have recently been explored independently in a great depth. The article, however, examines the synergic linkage between the two and especially how a domestic policy framework informed by a value chain-based perspective could offer a valuable guidance to governments, policy makers and other stakeholders to more intuitively conceive some of the fundamental food security challenges as well as to adopt remedial follow-up actions. In order to assist this consideration, a conceptual or definitional structure of value chains has been proposed in section 2 of the article by looking specifically at 'value' and 'chain' aspects. A section of the article is also devoted to the multilateral trade rules under the World Trade Organization (WTO) and the ongoing Doha negotiating discussions underlining their enabling role in exploiting the synergic linkage between food security and agriculture value chains.
Plurilateral Agreements and Global Trade Governance: A Lesson from the OECD
Authors: Heydon Kenneth
Published: April 2022

A key lesson from failure at the Organization for Economic Cooperation and Development (OECD) to negotiate a multilateral agreement on investment is that attempts to reduce barriers to trade and investment will fail without broad-based domestic support for open markets. This article applies that lesson to the faltering Doha Round of multilateral trade negotiations and argues that the deadlock is due to the collective failure to make-the-case for liberalization rather than, as is commonly suggested, the systemic constraints of a 'single undertaking' or the ascendancy of emerging powers. Deadlock in the Doha Round has triggered the pursuit of alternatives to multilateral negotiation. The result is increased emphasis on plurilateral approaches and the further entrenchment at the centre of trade diplomacy of preferential trade agreements (PTAs) - such as those being negotiated across the Pacific and the Atlantic. This article outlines the powerful motivations behind PTAs but also the dangers, including of limited welfare gains, disincentives to non-discriminatory liberalization and increased complexity and discord in international rule making. Plurilateral agreements involve particular risks for developing countries, whether through marginalization from single-issue agreements or asymmetric pressure within multi-issue PTAs. This article concludes that an effective, first-best, multilateral response to the challenge of the political economy of trade will require that trade liberalization be placed more firmly within the framework of sound domestic economic policy and that top-down liberalization, including through the G20 process, be accompanied by more effective bottom-up advocacy of the gains from market opening.
Tobacco and International Trade: Recent Activities of the FCTC Conference of the Parties
Authors: Gruszczynski Lukasz
Published: April 2022

The article analyses three recent proposals made by the State-Parties to the Framework Convention on Tobacco Control (FCTC), which appears to be relevant for determining the relationship between trade and health rules in the area of tobacco control. In this context, it attempts to answer the following questions: (i) what is the legal status of decisions made by the Conference of the Parties (COP) to the FCTC?; (ii) how does a COP decision (or any applicable provision of the FCTC) affect the mandate of WTO dispute settlement bodies to hear and decide WTO cases?; and (iii) to what extent can a COP decision (or any applicable provision of the Convention) require FCTC State-Parties to exclude tobacco and tobacco products from their future Preferential Trade Agreements (PTAs). The article comes to the conclusion that COP decisions lack any binding character, while provisions of the Convention do not affect the jurisdiction of WTO panels to hear complaints concerning potential violations of WTO law nor require carving out tobacco products from PTAs.
Blurred Lines: Reading TRIPS with GATT Glasses
Authors: Kennedy Matthew
Published: April 2022

There is a need to clarify when jurisprudence developed under the General Agreement on Tariffs and Trade (GATT) and under World Trade Organization (WTO) agreements on trade in goods and services is applicable in disputes concerning the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Through the application of the general rule of treaty interpretation, this article identifies two main areas in which such jurisprudence can be applicable in TRIPS disputes. These comprise procedural issues arising under the DSU and substantive issues surrounding basic GATT principles as adapted in Part I of TRIPS. The author makes a case study of the panel report in US – Section 110(5) Copyright Act to explore the consequences of resorting to GATT concepts in the interpretation and application of a minimum standard for intellectual property protection in Part II of TRIPS, and cautions against use of such an approach in future TRIPS disputes.
GATS and the Over-the-Top Services: A Legal Outlook
Authors: Peng Shin-yi
Published: April 2022

Over-the-Top (OTT) services refers to content delivery through an Internet platform; hence, an OTT application is any service that provides a product over the Internet and bypasses traditional distribution. Examples of OTT services may include chat applications (e.g., WhatsApp, Line, WeChat) and streaming video services (e.g., Netflix, Apple TV).This article is of the view that, based on the GATS jurisprudence, it is at least arguable whether OTT voice and messaging services fall under the GATS definition of Computer and Related Services. This article also suggests that the OTT TV, in the case that a Member did not base its “audiovisual services” schedules on the CPC and makes no reference to CPC codes, should fall under section 2. D. of W/120 as the use of a different medium to provide a service did not create a new service. In addition, with respect to the vertical competition between “infrastructure” and “content,” there is a “disconnection” between traffic and revenue, leading many operators to block or degrade OTT traffic. This article stresses the position that any further action to introduce the concept of “network neutrality” into TiSA should bear in mind that a proper balance should be struck between developed countries’ trade interests and developing countries’ development needs. Moreover, with respect to the horizontal competition between “foreign content” and “domestic content,” local broadcasters who supplied services within a Member’s jurisdiction are at a significant disadvantage compared to OTT service suppliers who housed their servers outside the member’s territory. The recent leak of TiSA negotiating texts on e-commerce, in which the U.S. advocates the need to ensure that governments do not require ICT service suppliers to use local infrastructure or establish a local presence as a condition of supplying services, have also caused some concern.
Coordinative Approach to Resolve Normative and Operational Conflicts between Inner and Outer-FTAs
Authors: Lo Chang-fa
Published: April 2022

The existing method for dealing with FTA-FTA conflict is to require consultation by the common parties to find a mutually satisfactory solution, or to require an FTA to prevail, or to require consultation to take into consideration general principles of international law. Such methods do not create much problems when the number of parties to an FTA is small and the common parties in different FTAs are also limited in number. However, with the emergence of mega-FTAs, the issue about FTA-FTA conflicts has different dimension. For instance, within TPP’s geographic coverage (the “outer-FTA”), there are some FTAs (the “inner-FTAs”).The existing methods fail to take into account the possible adverse effect to the outer-FTA. The article argues that it is desirable to coordinate the outer-FTA and its inner-FTAs. It suggests a procedural coordination to prioritize the application of the dispute settlement mechanism in the outer-FTA, with some exceptions to allow further trade liberalization and higher quality standards. It also suggests admitting third-party participation by other outer-FTA parties in the dispute settlement proceedings conducted under the inner-FTA. It further suggests outer-FTA serving as a platform to coordinate the substantive standards/rules so as to fundamentally resolve the difference.
Permitting Moral Imperialism? The Public Morals Exception to Free Trade at the Bar of the World Trade Organization
Authors: Du Ming
Published: April 2022

The objective of this article is to critically review the case law on public morals exception in the multilateral trading system and argue against the World Trade Organization (WTO) Appellate Body’s exceedingly deferential approach to the meaning and identification of public morals in international trade disputes. Admittedly, the WTO Appellate Body’s judicial minimalism approach to trade dispute settlement has so far prevented it from making any broad claims about public morals exception. Nevertheless, I argue that the Appellate Body has already waded into treacherous waters. Going forward, the WTO Appellate Body must be cautious so as not to permit moral imperialism and put the delicately balanced multilateral trading system at grave risk. For this purpose, I propose a more nuanced approach to define public morals as well as manage its extraterritorial application in international trade law.
Food Security Amendments to the WTO Green Box: A Critical Re-Examination
Authors: Das Sannoy
Published: April 2022

This article deals with one among the many significant issues with the World Trade Organization (WTO) Agreement on Agriculture that brought trade negotiations during the Doha Round to a standstill; and it continuous to remain contentious. The genesis of the conflict lies in a proposal to amend the Agreement to exclude certain policies of price support, given by developing countries to answer their food security goals, from the disciplines of the Agreement. The issue has thrown into sharp relief the overall conflict between development oriented goals and trade liberalization within the WTO legal order. This article posits that the most significant opposition to the amendment pretends to be economic in content, while masking an obviously political nature. In order to unmask this, the article investigates some theoretical foundations of subsidy regulation in WTO law, and particularly attacks the concept of distortion which is frequently used to classify subsidies. This article aims to show that as a theoretical matter, the amendment to Agreement on Agriculture is not perniciously trade-distorting as has been projected, and that developing countries can stake legitimate claim to have such amendment passed. Finally, through such argument, the article aims to place the conflict between two normative ideals, trade liberalization and food security in proper perspective.
International Economic Disputes, Investment Arbitration and Intellectual Property: Common Descent and Technical Problems
Authors: Gagliani Gabriele
Published: April 2022

Intellectual Property has always been at the heart of international economic governance. Indeed, the 1883 Paris Convention and the 1886 Berne Convention are commonly considered the first instances of international economic regulation. Hence, although the negotiation and adoption of the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) at the WTO and the inclusion of Intellectual Property (IP) rights among the ‘investments’ often covered under international investment agreements seem to have taken some by surprise, this convergence appeared inscribed in the genealogy of the subject. Many scholars have already paid attention to the relationship between trade, IP and investment, but the ‘technical’ issues that litigation in investment arbitration of IP rights (regulated at the national, regional and international level) might generate have apparently gone unnoticed. This article argues that further integration between the two regimes at the dispute settlement level is not desirable in practice for technical reasons. IP law and governance are highly fragmented and allocated among different fora at the international level. This situation is also reflected in the lack of agreement among states on several IP issues. The litigation of IP rights in investment disputes adds to this fragmentation instead of diminishing it and it appears as an attempt to unduly circumvent the discussions of IP questions taking place in intergovernmental fora.
Blowin Against the Wind: On ACTA, AA, CETA, TTIP and the Forgetfulness of David Ricardo
Authors: Wahl Nils
Published: April 2022

In the European Union of these days there seem to be a widespread and growing anti-free trade sentiment in some parts of the population. The arguments used against free trade are often presented as legal ones, as the recent experience with several agreements negotiated by the European Union (such as the CETA and the TTIP) shows. Against that background, doubts as to the prosperous future of the European Union’s trade policy seem legitimate, notwithstanding the fact that the European Union is currently negotiating around twenty trade agreements with different countries or groups of countries. This article is meant to provide a few thoughts on the future of EU trade policy. In particular, the following questions will be addressed: should the European Union, at this point in time, continue to pursue a free trade agenda? If so, does the European Union have the means to do that effectively? The authors explain that the pursuit of a free (and fair) trade agenda is part of the Union’s DNA. They also explain that there are ways to interpret and apply the current EU Treaties provisions so as to permit the European Union to conduct a more effective trade policy and enhance its credibility as international partner.
Is the Death of the TPP Good News for Brazil? Mega-Regional Agreements and the Quest for Development Policy Space
Authors: de Oliveira Susan Elizabeth Martins Cesar
Published: April 2022

Beyond the controversy between supporters and critics of the Trans-pacific Partnership (TPP), the agreement has generated broad scholarly interest as the first twenty-first century ‘mega-regional’ accord ever concluded. This article seeks to contribute to the debate, analysing the potential regulatory impact of a TPP-like agreement on Brazil and developing countries in general, arguing that third-generation broad economic partnerships may be incompatible with the foreign policy stance of keeping ‘policy space’ for development. The article compares the TPP legal text with previous free trade agreements (FTAs), and analyses provisions in various TPP chapters that contrast with Brazil’s traditional stance in key issues relating to market access, services, investments, intellectual property, electronic commerce and regulatory convergence. Evidence from this exercise outlined that Brazil has not acceded to various international agreements which participation is required under the TPP, and Brazil still lacks modern domestic regulations in crucial areas that would be demanded in a third generation agreement. The recent withdrawal of the United States from the TPP and the uncertainties surrounding trade global governance suggests that Brazil has a window of opportunity to revamp its domestic institutions and decision-making process to become a ‘rule maker’ instead of ‘rule-taker’ in international trade.
What Kind of Civil Society? The Changing Complexion of Public Engagement at the WTO
Authors: Scott James , Hannah Erin Norma , Janzwood Amy
Published: April 2022

Since the WTO’s creation its relationship with civil society has changed significantly. In this article, we use an original dataset to: (1) plot the changes that have taken place in civil society group representation at the WTO Public Forum; and (2) assess the significance of these changes for understandings of public interactions with the WTO. We test four hypotheses drawn from prevalent claims made in the academic and policy-facing literatures: (1) that the volume of participation in the Public Forum is determined by the ebb and flow of WTO-centred trade politics, with participation levels peaking during moments of crisis and falling away during times of stasis; (2) that the stalling of the multilateral trade agenda has led to business interests turning away from the WTO; (3) that the participation of nongovernmental organizations (NGOs) in the Public Forum is also sensitive to the rhythms of trade politics; and (4) that governments – particularly those from the global North – have begun to lose interest in the WTO and shifted attention to other arenas. We find support for hypotheses one and three but not for two and four. We subsequently analyse whose voices are heard at the Public Forum and find that there has been a narrowing of the arena of trade debate over time.
Direct Taxes and the GATS: Substantive and Procedural Defences for Non-compliant Income Tax Measures
Authors: Beyer Vincent
Published: April 2022

This article reviews the applicability of substantive and procedural defences for non-compliant income tax measures. It is argued that increasing legislative action on the domestic level will require detailed knowledge not only of the substantive obligations of the General Agreement on Trade in Services (GATS) but also its various exception clauses. GATS Article XXII:3 is reviewed that shields violations of the national treatment (NT) requirement from challenge in WTO dispute settlement proceedings where the measure falls within the scope of a double taxation agreement (DTA). The ambiguous wording and the lack of jurisprudence on the provision leave states with little guidance on its application. This article explores issues that arise under the provision ratione materiae, temporis, and personae. The quantitative reach of the provision is equally examined. Subsequently, the once-off opportunity to immunize violations of the most-favoured-nation (MFN) clause by means of inclusion in the List of Article II Exemptions is reviewed. Few states have submitted tax exemptions all of which are, with the exception of the US’, narrowly framed. Lastly, the scope of the subparagraphs of the general exception clause, Article XIV, is analysed. In addition to subparagraph c) which may serve to justify a wide range of violations, subparagraphs d) and e), relating to national and MFN treatment respectively, are scrutinized.
Trans-Pacific Partnership Agreement Minus One and Enhanced Criminal Penalty for Online Copyright Piracy: Malaysias Options
Authors: Sik Cheng Peng , Lim Heng Gee , Tay Pek San
Published: April 2022

The burgeoning of online piracy enables copyright materials to be routinely downloaded and exchanged for free, without any deliberate intention to infringe copyright. These acts were done for the purpose of sharing and attract no commercial value, and, hence, may not be considered as culpable criminal conduct because of the lack of intention. The Trans-Pacific Partnership Agreement (TPPA) introduces enhanced criminal provisions which are much harsher than the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) with a view to fight online copyright piracy. Even though the United States of America (US) have withdrawn from the Agreement, the other eleven countries are attempting to revive the Agreement, minus the US. The possibility of the Agreement being eventually implemented by the eleven-member countries is still real. This article examines two new criminal provisions introduced by the TPPA. The first is the criminalization of wilful copyright infringement even if carried out on a non-commercial basis. The second is the culpability of aiding and abetting of copyright offences. As these provisions are already in place in US law, reported judgments from the US on corresponding provisions would be examined. The article concludes with choices that Malaysia could consider in the event these two new obligations are implemented.
Airline Subsidies: Can the Law Play a Role in Regulating Them?
Authors: Lee Jae Woon
Published: April 2022

Airline subsidies have recently received attention largely because of US carriers accusing Gulf carriers of receiving subsidies. Although widely advertised allegations by the US carriers and counteraccusations by the Gulf carriers focus on questions of fact (i.e., whether the airlines in question received subsidies from their governments or not), there are more fundamental questions about whether airline subsidies can ground a legal action for unfair competition and whether the law can play a role in regulating airline subsidies. There are three obstacles to answering these questions. Firstly, there is no widely accepted legal definition of ‘subsidy’ in the context of airlines. Secondly, it is not clear which law applies to the subject matter because the Agreement on Subsidies and Countervailing Measures does not apply to air services and most bilateral air services agreements do not explicitly regulate subsidies. Thirdly, there is a question as to which international organization should be responsible for regulating airline subsidies. This article suggests that a transparency mechanism, based on subsidy provisions in newly developed air services agreements and the Chicago Convention of 1944, could play a significant role in disciplining unfair subsidies and thus contributing to fairer competition in the international aviation market.
The EUs Proposal Regarding the Establishment of the Investment Court System and the Response from Asia
Authors: Li Catherine
Published: April 2022

The EU has engaged in a large-scale global reform by proposing an investment court system as a means to address concerns about ISDS. The new proposal will certainly have certain impact on Asian countries in their FTA negotiations with the EU. This article analyses the key features of the investment court system, looking mainly at the CETA, EU-Vietnam FTA and TTIP texts for guidance, as well as how the EU’s proposal raises novel challenges. This article addresses, first, the EU’s reformed approach of investment dispute resolution and the repercussions from Asian countries; secondly, concerns which may persist in weighing the new court model and the existing investor-state arbitration system. Some Asian countries have been following very closely the new trend and raise a number of specific questions. It would be very interesting to understand the concerns of the Asian countries and analyse their current positions as well. It seems that Asian countries need to consider key elements concerning its establishment, including the need to build consensus among states, institutional aspect of the new permanent structure, issues relating to the decision-makers, and financial resources at stake. To sum up, the proposed reform is neither fully opposed nor fully supported.
Urgent and Important: Improving WTO Performance by Revisiting Working Practices
Authors: Hoekman Bernard M.
Published: April 2022

The rules of the game embodied in the World Trade Organization (WTO) date back to the 1980s. They have not kept up with a rapidly changing world economy in which countries increasingly use trade-distorting measures designed to advantage national industries. This article reflects on why cooperation in the WTO unravelled to the extent that it did in 2017-18 and argues that improving the performance of the organization in fulfilling its mandate requires re-visiting and updating WTO working practices.
Restructuring GATT Balance-of-Payments Safeguard in the WTO System
Authors: Yoo Ji Yeong
Published: April 2022

The balance-of-payments (BOP) safeguard provisions in the World Trade Organization (WTO) are still haunted by the structure designed for trade and BOP relationship in the postwar Bretton Woods system. The provisions are not only incompatible with the contemporary monetary system but their legal obscurity also retain unproductive loopholes that can further intrude trade relations. It is timely to clarify a proper function of the WTO BOP provisions against modern systemic risks generating chronic financial crises. This study aims to outline a reform agenda for the General Agreement on Tariffs and Trade (GATT) BOP safeguard provision, suitable to the contemporary WTO and International Monetary Fund (IMF) system. The WTO members should decide to legally abolish GATT BOP safeguard measures for the developed countries. This study also suggests ways to substantively institutionalize coordination between recent developments in the IMF on assessing reserve adequacy and WTO management of trade restrictions for BOP purposes.
Elevating Services: Services Trade Policy, WTO Commitments, and Their Role in Economic Development and Trade Integration
Authors: Roy Martin
Published: April 2022

Services have long been perceived as playing a secondary role in world trade. This article discusses the contribution of services trade in economic development, trade integration, and inclusiveness. It argues that the limited attention given to services trade policies and to international commitments is increasingly out of step with the role of services in the global economy. While services account for about 50% of world trade in value added terms, services trade policies are often restrictive and multinational commitments are generally modest. Taking steps to raise the profile of services trade within government policy-making would help close this gap and highlight the contribution of services trade policy to a wide range of broader national objectives that have an important services dimension, whether small and medium-sized enterprises (SME) and gender policy, or the achievement of Sustainable Development Goals (SDGs).
Ex officio Claimant: A Challenging Proposal for Reforming the WTO
Authors: Zdravkovic Uros
Published: April 2022

The members of the World Trade Organization (WTO) are still very reserved in pursuing cases and rather willing to seek traditional negotiating methods for settling their disputes. Decisions to engage in litigations are subject to numerous non-legal determinants. Moreover, many developing and least-developed WTO members face the problem of accessibility of the system provided by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). Those states have been standing aside the DSU arena with no opportunity to enjoy the benefits of legal protection. Finally, affected private companies cannot access the DSU system, nor participate in procedures as third parties. Those entities always need to exert pressure on their governments to bring a claim and to obtain financial support for litigations. All those circumstances in the pre-litigation stage prevent effective delivery and distribution of justice in the WTO community. Therefore, the author proposes a reform of the DSU system by means of establishing a new central institution in the WTO – the ‘Independent Surveillance Body’ (ISB). This expert body would act as an institutional ex officio claimant empowered to survey the implementation of the WTO norms and to initiate procedures against members that violate the WTO law.

World Trade Organization, Dispute Settlement System, Ex-officio Claimant, Pre-litigation, Distributive Justice.