bluuebunny/crossref_metadata_2025 huggingface dataset:
Anti-Dumping Disputes in the GATT/WTO – Navigating Dire Straits
Authors: Vermulst Edwin , Vermulst Edwin
Published: April 2022

“Over the last fifteen years, many countries have come to recognize the crucial vole that dispute settlement plays for any treaty system. This is particularly the case for a treaty system designed to address the myriad of economic questions of international relations today and to facilitate the cooperation among nations that is essential to the peaceful and welfare-enhancing vole of these relations. Dispute settlement procedures assist in making rules effective, thereby adding an essential measure of predictability and effectiveness for the operation of a rule-oriented system in the otherwise relatively weak realm of international norms.”

J.H. Jackson and S. Croley

“. . . dispute settlement in the area of anti-dumping will be one of the major challenges facing the WTO system. . . In view of the factual and legal complexity of the issues typically raised in disputes in the area of anti-dumping, effective implementation of this more judicial dispute settlement process will not be an easy task.”

Mark Koulen
Castro’s Cuba and the U.S. Helms-Burton Act – An Interpretation of the GATT Security Exemption
Authors: Kuilwijk Kees Jan
Published: April 2022

“Sovereignty, at this bridge in time between millennia, is the product of rules adherence; rules which in the international community are called international law. When any member of that community fails to adhere to rules previously agreed upon, or refuses to respect principles and practices broadly recognized and accepted, it declines in stature and prestige. It will find itself subject to international criticism, as has Cuba on occasion in the past, or will be the object of directed dissatisfaction and retaliation, as is the United States in the wake of the Helms-Burton Law. No State, on reflection, wishes or encourages international criticism of its acts any more than any State is capable of living in isolation. Isolation is self-destructive in this era; it matters not whether it stems from military might or from philosophical ideology. Interdependence is the successor to the Westphalian system. A mutuality of vulnerability, as well as of opportunity, is the essence of the new international structure.”

Professor Ivan Head
A Gambling Paradox: Why an Origin-Neutral “Zero-Quota” is Not a Quota Under GATS Article XVI
Authors: Regan Donald H.
Published: April 2022

In US—Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was “in effect” a “zero-quota”, and that such a “zero-quota” violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body’s “effects test”. This article argues that the Appellate Body’s “in effect” analysis is not an “effects test” and is not the real problem. The real mistake is regarding a so-called “zero-quota” as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word “quota” in such a context; it is at odds with the object and purpose of Article XVI; and it is likely to reduce Members’ willingness to make concessions.
The Proliferation of Free Trade Agreements: Bane or Beauty?
Authors: Trakman Leon E.
Published: April 2022

This article explores the policy foundations behind regional and bilateral trade agreements and their application in practice. Critically examining the arguments in support of them, it highlights the virtues and deficiencies of each. It concludes by arguing that international standards should be developed to guide the development of bilateral trade agreements in the future. The proliferation of bilateral trade agreements has helped to fill a gap in a multilateral trade process that is impeded by the impasse of negotiations in the World Trade Organization (WTO). At the same time, the development of bilateral trade agreements arguably has discouraged some States from engaging in multilateral negotiations. The result is a new genre of trade relations in which bilateral and regional mechanisms are increasingly adopted in substitution for multilateral trade processes. While, bilateral trade agreements diverge significantly in their form and substance, they are having an important, albeit disparate impact upon multilateral trade. This article examines different arguments for asserting that bilateral trade agreements have advanced multilateral trade relations. It poses a variety of questions. To what extent is the development of bilateral trade agreements founded on sound trade principles? Have bilateral trade agreements added value to or detracted from the perceived needs of multilateral trade? Are States subject to suitable guidelines in negotiating bilateral agreements? To what extent are States subject to obligations to redress the practices of recalcitrant States, such as by resort to trade boycotts and other sanctions, in responding to violations of the law governing international trade? Overriding all these questions is a potential tension between policies over the liberalization of trade. One policy is grounded in principles of laissez faire: that States should be comparatively unrestrained in concluding bilateral trade agreements in the interests of promoting the unchecked exchange of goods and services. Another policy holds that States are bound to respect their bilateral agreements and that violating them ought to lead to the censuring of offending States. In support of this latter policy is the claim that States that consent to bilateral agreements both surrender their sovereignty and territoriality bilaterally and subject themselves to international standards of compliance not limited to those embodied in the GATT and its WTO successor. The first two sections of this article evaluate the reasoning behind the liberalization of trade and the assumptions in favor of bilateral trade agreements. The third section critically evaluates different arguments in favor of negotiating and concluding bilateral trade agreements. The fourth section proposes legal principles and standards to guide the application of bilateral free-trade agreements in the twenty-first century.
Non–tariff Barriers Facing Trade in Selected Environmental Goods and Associated Services
Authors: Kim Joy A. , Fliess Barbara
Published: April 2022

Surveying 136 exporting firms from ten Organization for Economic Cooperation and Development (OECD) and non–OECD countries, this article documents the incidence, and impact of, non–tariff measures that are perceived to act as barriers to trade in seven sectors of environmental goods and associated services. Although the DDA has a mandate to address, inter alia, such trade barriers, information shedding light on the specific problems that firms encounter in their export activities has been scarce.

Accounts by exporting firms in Austria, Brazil, Canada, Chile, France, Germany, India, Japan, Korea and the United States suggest that environmental goods indeed face a variety of obstacles when traded abroad. Firms participating in the survey mentioned relatively often problems associated with product testing and certification requirements, customs procedures, regulations on payment, problems with intellectual property protection, government procurement procedures and technical regulations and standards. Certain types of reported barriers appear to be more prevalent in certain markets. For example, customs procedures reportedly pose a problem predominantly in developing and transition economies and problems with intellectual property rights are associated especially with China. The non–tariff barriers reported by the firms appear to be generic and not specific to the environmental sector. The article shows that in many countries the environmental industry consists mostly of SMEs, for whom cost–raising barriers pose disproportionately greater problems due to their limited resources.

The survey helps to better understand the effects that NTBs have at the firm level, and what firms do when they encounter barriers of various types. It appears that the firms participating in this study mostly seek to devise ways of coping with the difficulties that they encounter, rather than seeking help from governments. Since these measures are ad hoc and do not address problems at their source, they cannot substitute for governments taking action. The study points out that many of the concerns voiced by firms in the environment sector can be addressed at the WTO but that more can be done also at the bilateral and regional levels.
Small States, Big Problems: Small Solutions from Big Countries
Authors: Prasad Biman , Singh Rup
Published: April 2022

Several studies suggest that growth constraints in small states are not different from others and therefore they do not require special attention. In this article, we argue that this may not be so and therefore, the developed countries and donor agencies may have to reconsider special and differential treatments within the provisions of the WTO and establish a sustainable provision for small economies. Our analysis show that although trade liberalization provides positive stimulus for growth, small states endure high cost of doing business which have escalated following the withdrawal of differential treatments and this has had implications on small states performances. Further, these economies have been facing negative trade effects especially in the post–1995 period. Therefore, we suggest that small states have a strong case to argue for continued support in the form of adjustment and adaptation funds in order to develop institutions, infrastructure, capacity and competitive domestic exports.
EU Sugar Policy: An Extraordinary Story of Continuity, But Then Change
Authors: Swinbank Alan
Published: April 2022

This article outlines the key features of the European Union’s (EU’s) sugar policy from its inauguration in 1968 to its ‘reform’ in 2006. Although a quota mechanism was in place, limiting the quantity of EU-produced sugar that could qualify for market price support, the EU’s net export surplus was allowed to grow, particularly after EU enlargement in 1973. The EU was unable to participate effectively in a succession of International Sugar Agreements but was able to shrug off criticisms in GATT. Initially, the Uruguay Round Agreement on Agriculture had little impact on EU sugar policy; but an adverse Dispute Settlement ruling, and the opening of the EU market through the Everything but Arms initiative, changed the international policy context and led to policy reform.
Definition of the Concept ‘International Standard’ in the TBT Agreement
Authors: Zúñiga Schroder Humberto
Published: April 2022

The definition of the concept ‘international standard’ in the Technical Barriers to Trade (TBT) Agreement is of paramount importance within the World Trade Organization (WTO) general framework, because it allows a precise understanding of Articles 2.4 and 2.5 which encourage ‘harmonization’ as one of the ways to tackle the potential negative effects to trade derived from the existence of different standards. Given that the WTO is a non-standard-setting organization, the task of drafting international standards has been delegated to different standardizing bodies. The Sanitary and Phytosanitary (SPS) Measures Agreement clearly defines which bodies are entitled to issue these standards, but not the TBT Agreement. Considering this, this article focuses on the analysis of the different interpretative possibilities through which it is possible to define this concept (from a trade law perspective) and on the advantages and disadvantages of the TBT Agreement and other third parties’ approaches.
Doha Reform of WTO Export Credit Provisions in the SCM Agreement: The Perspective of Developing Countries
Authors: Soprano Roberto
Published: April 2022

Export credit instruments are important tools for enterprises used by developing and developed countries to face risks of default of transactions and to offer purchasers extended payment of their goods. Although they contribute to foster international trade, their misuse is likely to distort competition in the marketplace. In order to prevent competition being based on the amount of support received by the domestic Export Credit Agencies more than on price and quality of goods traded, states developed international rules within the framework of the Organization for Economic Cooperation and Development (OECD) and World Trade Organization (WTO). However, the manner in which those rules have been written creates an unbalanced playing field between developing and developed countries. During the Doha Development Round, some countries proposed amendments in the current WTO norms in order to modify items (j) and (k) of the Illustrative List of Annex I of the Subsidies and Countervailing Measures (SCM) Agreement and reduce the unbalances due to the financial and risk conditions of developing countries against developed countries. This contribution will analyse the interests of developing and developed countries in the Doha proposed reforms aimed at restoring a level playing field among WTO Members.
Impasse in the DDA NAMA Sectoral Negotiations and Possible Solutions
Authors: Fu Neo Jingjie
Published: April 2022

Sectoral negotiations are the major stumbling block to a successful conclusion of the Doha Development Agenda (DDA) non-agricultural market access (NAMA) negotiations. Tensions have been created because developed countries such as the United States insist that emerging economies such as China, India, and Brazil participate in sectoral negotiations and accept the final results of such negotiations. This demand has been persistently rejected by the emerging economies. This article analyses the impasse in the sectoral negotiations from the perspectives of the negotiating mandate and reciprocity in the results of the tariff reduction. It chooses the United States and China as samples for comparison and finds that insistence on the compulsory participation of developing members in sectoral negotiations is inconsistent with the mandate of ‘non-mandatory’ participation; and that the three US-led sectoral initiatives, that is, chemicals, industrial machinery, and electronics and electrical products, have led to deep additional tariff reductions, which are asymmetrical between developed and developing members. Due to a lack of reciprocity, these three sectoral initiatives have become part of the problem, instead of the solution, to the DDA NAMA negotiations. To solve the impasse, this article proposes some adjustment to the current sectoral initiatives to restore reciprocity and encourage the voluntary participation of developing members.
Export Restrictions on Strategic Raw Materials and Their Impact on Trade and Global Supply
Authors: Kim Jeonghoi , Korinek Jane
Published: April 2022

Barriers to trade come in a variety of forms. This article examines one such barrier, export restrictions, and how it impacts trade and global supply in selected strategic metals and minerals. The metals and minerals examined in the article are of particular interest for a number of reasons: they are generally geographically concentrated in a few countries, many are used in the production of high-technology goods in strategic sectors, and there are few substitutes for these raw materials given the present state of technology. For all these reasons, importing countries are dependent on a reliable supply of these raw materials. Export restrictions may be applied for a number of reasons: protection of the environment, preservation of natural resources, protection of downstream industries, or as a response to a number of different market imperfections. This article examines the motivations for using export restrictions and finds varying impacts on trade and global supply. In one case, the export restrictions put into place did not fulfil their objective of environmental protection. In another, the presence of export restrictions in one country put pressure on other exporters to apply restrictions, suggesting the potential for competitive policy practices in restricting exports. In a third case study, export restrictions were seen to impact investment decisions by potential suppliers worldwide by introducing an added element of risk in the industry. The impact of export restrictions on strategic metals and minerals is exacerbated in many cases because producing countries have a quasi-monopoly on supply. Since these metals and minerals are essential in the production of some high-technology products and are not easily replaceable in the medium term, industry participants in some importing countries are concerned about future access at sustainable prices.
Davids Sling: Cross-Agreement Retaliation in International Trade Disputes
Authors: Mitchell Andrew D. , Salonidis Constantine
Published: April 2022

Cross-retaliation, where a World Trade Organization (WTO) member whose rights have been infringed under one WTO Agreement retaliates against the offending member under another WTO Agreement, is seen by some commentators as a way to counteract the deficiencies of conventional trade retaliation and mitigate the asymmetry of power in the WTO dispute settlement system. However, the potential of crossretaliation as an effective remedy remains unclear. This article argues that a credible and probable threat of cross-agreement retaliation could provide a powerful incentive for ex ante compliance. The credibility of the threat is established by reference to the WTO Agreement that is targeted. The suspension of Trade-Related Aspects of Intellectual Property Rights (TRIPS) obligations, in particular, holds great promise. The probability of the threat depends on the likelihood of the Dispute Settlement Body (DSB) authorization to suspend concessions, the outcomes of previous threats, and actions to operationalize cross-retaliation. WTO jurisprudence has fleshed out the requirements of Article 22.3 of the Dispute Settlement Understanding (DSU), allowing relatively safe assumptions as to the likelihood of DSB authorization to suspend concessions across agreements where significant economic disparities exist between the disputing parties. Previous cases featuring the threat of cross-retaliation reveal a modest influence on the policies of disputing parties. Finally, the operationalization of cross-agreement retaliation pursuant to the TRIPS Agreement is riddled with legal and policy problems, mainly in connection with the personal and territorial scopes of the suspension, the justiciable nature of intellectual property (IP) rights, the quantification of the suspension, the continuous supply of IP-dependent goods, and the consistency of the suspension with other, non-WTO international obligations. However, these problems do not prohibit developing countries from reaping the benefits of asymmetric information, so long as they create the impression of carefully structured retaliation plans that are ready to be triggered in the event of DSB authorization.

A reasonable probability is the only certainty.

Edgar Watson Howe (1853-1937)
Reflections on the Preferential Liberalization of Services Trade
Authors: Shingal Anirudh
Published: April 2022

This paper takes stock of the forces that lie behind the recent rise of preferential agreements in services trade. Its initial focus is with a number of distinguishing features of services trade that set it apart from trade in goods and shapes trade liberalization and rule-making approaches in the services field. The paper then documents the nature, modal, and sectoral incidence of the trade and investment preferences spawned by preferential trade agreements (PTAs) in services. It does so with a view to addressing the question of how preferential the preferential treatment of services trade is. Finally, the paper addresses a number of considerations arising from attempts to multilateralize preferential access and rule-making in services trade.
The Battle over the EUs Proposed Humanitarian Trade Preferences for Pakistan: A Case Study in Multifaceted Protectionism
Authors: Yeung May T. , Perdikis Nick
Published: April 2022

In the wake of devastating floods in Pakistan in 2010, the European Union (EU) has attempted to use trade policy to provide humanitarian assistance by the temporary lowering of tariffs on select imports from Pakistan. This Proposal, justified on humanitarian grounds, requires a World Trade Organization (WTO) waiver, which so far has not been possible, amidst developing countries' concerns regarding erosion of the value of their preferential access to the EU market. A detailed examination of the EU Proposal indicates marginal benefit to Pakistan at best, given that sensitive import-competing products were largely excluded, suggesting that protectionist interests had a hand in shaping the policy. The findings also suggest that trade policy might not be an effective means to provide humanitarian assistance.
FDI Regimes, Investment Screening Process, and Institutional Frameworks: China versus Others in Global Business
Authors: Anwar Syed Tariq
Published: April 2022

The main purpose of this paper is to investigate and analyse foreign direct investment (FDI) regimes and their screening processes, institutional frameworks, and business environments in world trade. China's FDI regime is specifically compared with that of the United States, Australia, Canada, and the United Kingdom. Other countries (France, Germany, Japan, Hong Kong, and Switzerland) were also included in the discussion to evaluate their regulatory and investment issues. By using interdisciplinary literature, secondary data, and research surveys and reports from multilateral institutions, the study investigates the changing profile of FDI regimes in world trade. The paper reveals that China's FDI regime has embraced significant changes to attract foreign investment. Currently, the Chinese market is open yet restricted in its own regulatory environment and institutional hurdles. Investment regimes in the United States, Australia, Canada, and the United Kingdom continue to change to attract foreign investment that is critical to their economies. We believe that more country- and industry-specific studies are needed to investigate FDI regimes and their institutional frameworks. In today's world trade, China is particularly an interesting case study since the country aggressively attracts foreign investment while keeping its hybrid economy. Policymakers, multinational corporations (MNCs), governments, and researchers need to pay attention to today's changing FDI regimes because of growth opportunities and MNC expansion. The study provides useful discussion and meaningful implications that can be used by policy analysts and practitioners worldwide.
Reforming WTO Discipline on Export Duties: Sovereignty over Natural Resources, Economic Development and Environmental Protection
Authors: Ya Qin Julia
Published: April 2022

The current World Trade Organization (WTO) regime on export restraints comprises two extremes: at one end is the near-complete freedom to levy export duties enjoyed by most Members, which renders the WTO discipline on export restrictions largely ineffective; at the other end, the rigid obligations imposed on several acceding Members prohibiting the use of export duties for any purpose. The recent WTO ruling in China-Raw Materials has only solidified the latter extreme. This article seeks to expose the irrationality of the current regime, especially the problems created by the rigid obligations of the several acceding Members. It contends that such obligations deprive these Members of their ownership right to claim a larger share of their natural resources for domestic use and of an effective tool for managing environmental externalities associated with the resource products exported. The virtual immutability of such obligations is at odds with the principle of permanent sovereignty over natural resources. To rectify these problems, this article proposes integrating all stand-alone export concessions into General Agreement on Tariffs and Trade (GATT) schedules, which would provide the acceding Members with the policy space and flexibility available under the GATT. It is also submitted that the key to gaining support from developing countries for the establishment of a system-wide discipline lies in the recognition of legitimate functions of export duties. Rather than pushing for their elimination, the WTO should aim to regulate export duties in the same manner as its regulation of import duties.
Investor-State Arbitration under Bilateral Trade and Investment Agreements: Finding Rhythm in Inconsistent Drumbeats
Authors: He Ling Ling , Sappideen Razeen
Published: April 2022

The investor-state arbitration process has been commonly used under bilateral trade and investment agreements since first adopted by the North American Free Trade Agreement (NAFTA) in 1994.This mechanism has well served the investment interests of multinational corporations. In recent times, some countries have been rethinking the special legal rights offered to foreign investors over domestic investors in dispute resolution through the investor-state arbitration process. This article examines the changing landscape in investor-state dispute resolution and its impact on bilateral trade and investment agreements.
Resources and Trade: Linking the Pacific through Bilateral Free Trade Agreements (FTA)
Authors: Garcia Maria
Published: April 2022

In the last decade, China has embraced the negotiation of free trade agreements (FTA), increasingly across the Pacific. It has agreements with Chile, Peru and Costa Rica. Economists have highlighted the limited outcomes from FTAs. Latin American states can gain better access to China's market in FTAs, but China faced few restrictions in these countries. This article analyses trade and investment flows, and the negotiated agreements to investigate the rationale behind these, and explores the possibility that these are politically motivated agreements to reward diplomatic allies, extend norms, as opposed to the EU/US norm-dominated WTO, and balance the influence of the USA.
China Threat? Evidence from the WTO
Authors: Scott James
Published: April 2022

The rise of China has elicited a voluminous response from scholars, business groups, journalists and beyond. Within this literature, a 'China Threat Theory' has emerged which portrays China as a destabilizing force within global politics and economics. Though originating in Realist accounts, this China Threat Theory has spread across to other approaches, and it increasingly forms the backdrop against which scholarly work positions itself. Our article contributes to this debate by examining China's role within the World Trade Organization (WTO). It assesses the extent to which China has been the disruptive power that it is often claimed to be. In particular, the article examines the change identified in Chinese diplomacy around 2008, and argues that this is attributable to the process of learning and socialization that China had to undergo as a new member, coupled with its elevation to a position of decision-making power. Contrary to the China Threat Theory, we find little to suggest that China has adopted an aggressive system challenging mode of behaviour.
Russia in the WTO: The Bear on a Leash? Russia in International Trade Disputes and the Added Value of a WTO Membership
Authors: Schewe Christoph J.
Published: April 2022

After 18 years of negotiations Russia finally became the 156th Member of the WTO. Given the fact that Russia is the last of the 'BRICS' and G20 acceding to this organization, there are considerable hopes that this event might not only modernize the Russian economy but also have a vitalizing effects on other national economies. Apart from potential economic gains there are hopes that the WTO membership will have a favourable effect on transparency and predictability of Russia as an actor in international trade. Notwithstanding, the matter remains controversial as sceptics invoke that instruments provided by the WTO are insufficient for controlling a Russia that in regard to the world's dependency on energy holds a strong political bargaining position. The guiding question thus is whether the WTO can be effective in 'putting the Russian bear on a leash' in the sense of making Russia adhere to trade rules.

This article will provide an overview of Russian trade relations and highlights trade disputes with several EU Member States. Hence, it will introduce the changes under WTO Membership and provide a prediction as to how these developments might influence legal structures in the country.
Water Footprint and the Law of WTO
Authors: Szwedo Piotr
Published: April 2022

As 'blue gold' is becoming a scarce good, different methods for protecting the human right to water are being devised. One of these is to reduce the ways in which it is misused. In order to achieve this, the concepts of 'virtual water' and a 'water footprint' are being developed. An ecolabel with a water footprint indicator is being applied by the first representatives of agribusiness. However, its potential is much more significant. It could be used as a tool of public policy. In both cases, it could affect international trade and therefore needs to be evaluated under the law of the World Trade Organization. The International Organization for Standardization already works on a water footprint norm, which would provide public entities with a strong argument for their water-saving policies. To date, states have not been provided with any relevant international standard. Nevertheless, they must comply with the norms of international trade. The aim of this article is to provide clarification on the existing and developing legal framework on the matter. It also argues that even if the concept of a water footprint were to remain a private standard, states would still be under a 'best effort' obligation to ensure the transparency of its elaboration and application.
Transfer Pricing and the WTO
Authors: Bastin Lucas
Published: April 2022

Transfer pricing is the phenomenon by which related corporate entities in different jurisdictions determine the price at which a transfer of goods or services between those two entities should be deemed to have occurred. This phenomenon is an inherent and endemic part of the international trading system. Given this, and given the significant governing role which the WTO plays in that system, the question stands: to what extent do, or could, the WTO institutions and WTO Agreements regulate transfer pricing and, more particularly, transfer mispricing? This article considers that question. Section I introduces the topic. Section II explains the concept of transfer pricing (and mispricing). Section III identifies the institutions of the WTO (and WCO) which are relevant to the phenomenon of transfer pricing and mispricing. Section IV identifies those provisions of the WTO Agreements the operation of which could have consequences for the phenomenon of transfer pricing and mispricing, in particular Article VII of the GATT and the WTO Customs Valuation Agreement. Section V considers whether, pursuant to the terms of the CVA and GATT, transfer mispricing could be raised in the WTO dispute settlement mechanism. Finally, section VI offers a brief conclusion about the likely future treatment of transfer pricing and mispricing in the WTO.
A Vision for Ukraine in the World Economy
Authors: Tarr David , Jensen Jesper
Published: April 2022

Two regional trade agreements have been at the centre of attention in Ukraine: the Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU and the Russia-led Eurasian Customs Union (ECU). Arguably they were the source of the fall of the Yanukovych government and the hostilities in Eastern Ukraine in the spring and summer of 2014. This article argues that a trade policy that is global in perspective and the lowering of trade costs are critical for Ukraine, and that efforts should centre on addressing specific policy areas that negatively affect trade with both customs unions. Ukraine could propose the creation of a number of 'supply chain councils' organized around the major export sectors for Ukraine, the ECU countries as well as the EU. The councils would have a mandate to identify the most important sources of supply chain inefficiencies as well as actions to resolve them. Such an approach would help to rebuild trust between Ukraine and Russia after the cessation of hostilities and help to assure Russia that the DCFTA is not an anti-Russian agreement.
Revisiting European Influence: The Case of Agricultural Trade Negotiations
Authors: Millet Montserrat , Kienzle Benjamin , Garcia-Duran Patricia
Published: April 2022

In recent years, scholars have called into question the often-heard policy statements that link a stronger single voice of the European Union (EU) to more European influence in international negotiations. This article examines this challenge in an area where the EU has a particularly long tradition of establishing common policies: agriculture. By comparing in particular the international agricultural negotiations that have taken place in the framework of the Uruguay and the Doha Development Rounds (up until Cancún), it argues that internal coherence is actually not a sufficient condition for EU influence in these negotiations. On the contrary, by building on different strands of literature - International Relations, EU studies and trade policy - it shows that the EU's ability to influence outcomes has been increasingly affected by external developments. More specifically, the article draws on three crucial external processes in this regard: First, emerging powers have gained substantial commercial weight. Second, key countries, especially Brazil, have played an increasingly active role in the negotiations. Third, these countries have strengthened their positions through successful coalition-building. Consequently, if European policy-makers want to increase the EU's influence in agricultural trade negotiations, they have to more consciously adapt its negotiation approaches to the changing external negotiation environment.
Shelter from the Storm: Exploring the Scope of Application and Legal Function of the GATS Prudential Carve-Out
Authors: Cantore Carlo Maria
Published: April 2022

Paragraph 2(a) of the GATS Annex on Financial Services is generally known as the Prudential Carve-Out (PCO). Essentially, it allows WTO Members to adopt the measures they deem appropriate for prudential reasons, when regulating trade in financial services. The provision has not yet been interpreted in WTO dispute settlement proceedings. However, it is extremely relevant in light of the 2008-2009 financial crisis and the regulatory developments that ensued worldwide. Few scholars have looked into the issue and it seems to be their common view that the PCO has to be classified in the technical sense as being an 'exception' to the obligations and the commitments of the GATS. The main argument of this article is that the PCO should rather be classified as a 'provision that excludes the application of other provisions'. This alternative interpretation is more consistent with the negotiating history of the provision, the negotiators' intention, as well as the economic rationale behind it. Characterizing the PCO in this manner has implications for the allocation of the burden of proof (which should therefore fall on the complainant and not on the defendant) and for the degree of deference that WTO judges have to pay to the rights and the prerogatives of the regulators in the domain of financial services.
Why TTIP Should Have an Investment Chapter Including ISDS
Authors: Quick Reinhard
Published: April 2022

TTIP provides for a unique opportunity to introduce procedural and substantive reforms for Investor-State Dispute Settlement (ISDS). The EU and the US can define a modern investment chapter protecting foreign direct investment against unjustifiable interferences by the host state whilst ensuring the sovereign right of the state to regulate. TTIP should create a system of binding international arbitration with a transparent system of adjudication made by impartial arbitrators and guaranteed by an appellate review conducted by independent 'judges'. Such an agreement would function as a catalyst to overcome the fragmented network of bilateral investment agreements. Not to include ISDS in TTIP would demonstrate that the two economic champions of the world are unable to lead by example.
Constraints of the WTO Compensation Mechanism and Implications from Recent Practice
Authors: Chen Yusong , Li Xiaoling
Published: April 2022

Though compensation, as one of the two temporary remedies offered by the World Trade Organization (WTO), is preferred over retaliation, it is less used because of some constraints. Compared with the compensation agreements reached in early cases, the compensation agreements entered into in US-Section 110(5) Copyright Act, EC-Hormones, US-Upland Cotton and China-Publications have made some developments to counteract those constraints. Such developments challenged systematic aspects of the current compensation mechanism, i.e., the application of MFN provisions, the temporary nature of compensation, and at the same time, embodied institutional innovations, i.e., introduction of monetary compensation, recourse to Article 25 on arbitration to determine the level of compensation. Compensation agreements reached in those cases have relieved or solved the deadlock of the compliance problems in sensitive disputes and shed some light on the reform of the compensation mechanism. Members should not wait for the successful conclusion of the Doha Round negotiations, but ought to fully utilize the existing WTO mechanisms to improve the efficiency of the compensation mechanism.
A Continental Free Trade Area: Imperatives for Realizing a Pan-African Market
Authors: Páez Laura
Published: April 2022

Africa is embarking in one of its major regional integration projects since the African Union was conceived: a Continental Free Trade Area (CFTA), which gained traction through an African Union Decision and Declaration mandating the establishment of the pan-African free trade area by 2017. Considerable progress has been made since, with the official launch of CFTA negotiations last June. A major prerogative for the realization of a CFTA is that fifty-four African States make concessions for the common benefit of liberalized trade. This paper therefore critically looks at what is being considered in the negotiations of a CFTA in terms of objectives, scope, disciplines and timelines. It also contemplates critical elements of operability and functionality of a future CFTA agreement and proposes key elements that may give content and help realize a prospective CFTA which can deliver on the promise of greater intra-African trade.
The Legality of Data Residency Requirements: How Can the Trans-Pacific Partnership Help?
Authors: Peng Shin-yi , Liu Han-wei
Published: April 2022

Article 14.13 of the Trans-Pacific Partnership (TPP) Agreement – the data localization (DL) clause – represents the first time that a far-reaching preferential trade agreement (PTA) seeks to reduce protectionism arising from data residency (DR) requirements. The DL clause, however, is linked to a loose GATT Article XX-like exception: Article 14.13(3)(b), which allows the parties to maintain DR measures to achieve a legitimate public policy objective as long as the measure in question can satisfy the ‘necessity test’. The ambiguity of the DL exception will be clarified by TPP tribunals when a real dispute occurs. After examining the rationales of the DR measures in the context of the necessity test, we find that the responding party invoking a DL exception will have strong arguments, especially when defending Types II and III of the DR measures. Arguments could be made that there is a genuine relationship between the ends, i.e. privacy protection, and the means, i.e. the DR measures. In addition, the responding party invoking a DL exception in a potential dispute would undoubtedly argue that the Mutual Legal Assistance Treaty (MLAT) cannot qualify as a ‘genuine alternative’, because the proposed measure must not only be ‘less trade restrictive’ than the DR measures, but should also ‘preserve for (the responding party’s) right to achieve its desired level of protection’ with respect to law enforcement or a criminal investigation. Based upon our findings, we argue that with regard to Trade in Services Agreement (TiSA) and Transatlantic Trade and Investment Partnership (TTIP) negotiations on e-commerce, the major challenge of trade negotiators is the disciplinary fragmentation of global economic regulation. The DR issues in question confirm that international economic law (IEL) correlates to other areas of law. Future negotiations require more collaborative and interdisciplinary solutions through productive dialogue with experts in private international law and criminal procedure law. True and substantial changes in the theories and practices of Internet jurisdiction would allow us to argue for a more narrow interpretation of the DL exception – rendering it more difficult to satisfy the necessity test.
The EU Regulation on Conflict Minerals: The Way Out of a Vicious Cycle?
Authors: Voland Thomas , Daly Shona
Published: April 2022

In April 2017, the EU adopted a new EU Regulation introducing a compulsory due diligence scheme for the trade in conflict minerals. This regulation is the latest milestone in the process of tightening the supply chain requirements concerning tin, tungsten, tantalum and gold. The aim of this process is to encourage companies to respect human rights and avoid contributing to conflict through their mineral sourcing practices by cultivating transparent mineral supply chains and sustainable corporate engagement in the mineral sector. Measures already in place include the US Dodd-Frank Act and the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Afflicted and High-Risk Areas. However, the former applies only to the Democratic Republic of Congo and its neighbouring countries. By contrast, the OECD Guidance is broader in material and geographic scope but stipulates only non-binding recommendations. The following article discusses these sets of rules. Moreover, it explains the details of the new EU Regulation and discusses the extent to which it stipulates new and stricter rules for the trade in (conflict) minerals.
Saving Africa: The GMO Cold War and the Battle for Africa
Authors: Osiemo Onsando
Published: April 2022

The situation in Africa is dire … On average, agriculture accounts for 70% of full-time employment … , 33% of national income, and 40% of total export earnings … . Yet its performance in recent decades has been one of the worst in the world. (K. Otsuka, D. F. Larson, & P. B. R. Hazell, An Overview , in An African Green Revolution: Finding Ways to Boost Productivity on Small Farms 1, 2 (K. Otsuka & D. F. Larson eds, Springer 2013).)

Africa’s food crisis calls out for answers … . One new technical option is the development of new crop varieties through genetic engineering techniques. (R. Paarlberg, Are Genetically Modified (GM) Crops a Commercial Risk for Africa? 2 Int’l J. Tech. & Global. 81, 81–82 (2006).)

Africa poses a conundrum. On the one hand, it has the largest percentage of undeveloped arable land in the world and deploys the largest percentage of labour in agricultural production. Yet, on the other hand, its agricultural productivity is about one third of the world ’ s average; it is a net food importer; and it suffers from the highest level of hunger in the world. Proponents of genetically modified organisms (GMO) crops have opened a new front of the GMO cold war in Africa by crusading for the adoption of GMO in Africa as a solution to increasing its agricultural production and alleviating hunger. Opponents of GMO crops have responded by vociferously opposing the adoption of GMO in Africa. Africa is torn between these opposing forces. This article examines the ongoing GMO cold war and how it is playing out in Africa. The article finds that there is a stalemate: there is minimal adoption of GMO in Africa and yet its food deficit and attendant consequences is escalating.
The Design and Operation of Rules of Origin in Greater Arab Free Trade Area: Challenges of Implementation and Reform
Authors: Malkawi Bashar H. , El-Shafie Mohammad I.
Published: April 2022

Rules of origin (ROO) are pivotal element of the Greater Arab Free Trade Area (GAFTA). ROO are basically established to ensure that only eligible products receive preferential tariff treatment. Taking into consideration the profound implications of ROO for enhancing trade flows and facilitating the success of regional integration, this article sheds light on the way that ROO in GAFTA are designed and implemented. Moreover, the article examines the extent to which ROO still represents an obstacle to the full implementation of GAFTA. In addition, the article provides ways to overcome the most important shortcomings of ROO text in the agreement and ultimately offering possible solutions to those issues.
Adjudicating Security Exceptions in WTO Law: Methodical and Procedural Preliminaries
Authors: Weiß Wolfgang
Published: April 2022

As WTO members increasingly invoke security exceptions and the first panel report insofar was issued in Russia – Traffic in Transit, the methodical and procedural preliminaries of their adjudication must be reassessed. The preliminaries pertain to justiciability and to the proper interpretive approach for their vague terms that seemingly imply considerable discretion to WTO members, all the more as general exceptions are subject to expansive interpretation. Reading security exceptions expansively appears not viable as they miss the usual safeguard against abuse (i.e. the chapeau of Articles XX GATT/XIV GATS). This lack of safeguards rather suggests caution in conceptualising them expansively, as do the systemic consequences of recent attempts to re-politicize security exceptions which run the risk of nullifying the concept of multilateral trade regulation altogether. Furthermore, the appropriate standards of review and proof must be explored which have to strike a balance between control and deference in national security.
China’s Preferential Treatment on Trade in Services: Is the Sleeping Dragon About to Wake Up?
Authors: Gari Gabriel
Published: April 2022

This article examines China’s specific commitments and rules on trade in services included in its Preferential Trade Agreements. The findings reveal that so far such agreements include only modest improvements compared with General Agreement on Trade in Services (GATS). At the same time, the article argues that structural changes in China’s economy and a conducive policy environment are likely to stretch China’s preferential treatment on trade in services in years to come. However, the article warns that the dragon will remain particularly cautious to undertake new commitments that could limit its policy space to maintain its socialist market economy system, including disciplines on state owned enterprises, subsidies, competition and monopolies and exclusive service suppliers, data flows and regulatory coherence.
Reflexions on the Scope and Classification of Logistics Services in Trade Negotiations
Authors: Varadejsatitwong Paitoon , Banomyong Ruth , Julagasigorn Puthipong
Published: April 2022

Logistics services are an important issue for trade in services negotiations. However, there are different perspectives related to the scope of logistics services, not only for policy makers involved in services negotiations but also academia. This leads to differing understandings and classifications of logistics services depending on the perspective. A bibliometric and network analysis was conducted to identify keywords and propose an expanded definition that reflects the current role and scope of services offered by logistics service providers. A novel nomenclature for logistics services classification is advanced based on an expanded definition.

WTO, Trade logistics, Logistics service, LSP definition and classification, Trade in services negotiation