bluuebunny/crossref_metadata_2025 huggingface dataset:
Accession Protocols: Legal Status in the WTO Legal System
Authors: Liu Jingdong
Published: April 2022

Accession protocols are unique legal instruments in the World Trade Organization (WTO) legal system. With the increasing numbers of new Members joining the WTO, the number of accession protocols is also on the rise. However, due to the ambiguous legal status of the accession protocols in the WTO legal system, the disputes relating to the understanding and application of the provisions in accession protocols are frequently taking place. Because accession protocols concern the fundamental trade interests of new Members, their status in the WTO legal system is of great importance. The WTO Ministerial Conference and General Council should therefore fulfil their statutory duties in such a way as to mitigate potential challenges posed by the possible legal uncertainty of accession protocols in pursuing the aims of the multilateral trading system, in adhering to and promoting WTO principles and rules as well as the basic principles of international law and in particular situating accession protocols appropriately within the overall WTO legal framework. Specifically, this article proposes that the WTO Ministerial Conference and General Council should properly address the relationship between accession protocols and the Marrakesh Agreement Establishing the World Trade Organization and its annexes. Such action will help to safeguard the legal rights and interests of the new WTO Members.
The Good, the Bad, and the Ugly. Lessons on Methodology in Legal Analysis from the Recent WTO Litigation on Renewable Energy Subsidies
Authors: Rubini Luca
Published: April 2022

Through the use of the recent litigation on renewable energy subsidies in the World Trade Organization ('WTO') as a case study, this article highlights the importance of methodology in legal analysis and, in particular, of integrity, coherence, and legitimacy. Reference is made to those cases where, in the presence of pressing policy considerations, the adjudicator is led to commit serious errors in order to reach what is perceived as a just and desirable outcome. Adjudicators are often called to distinguish a 'good' policy from a 'bad' one but, if the regulatory framework is not sufficiently responsive to such distinctions, the act of accommodation of law and policy may lead to 'ugly' constructions of the law. The twist of this course of conduct is that the effects of legal interpretation tweaking might not be easily confined to the case at hand and may have broader, negative implications for the legal system at large. Rather than resolving into a simple criticism of adjudicating bodies, the article argues that the ultimate responsibility for dispute settlement mistakes caused by policy pressures is that of law-makers and their inability to take the lead and reform the law.
Exhaustible Natural Resource in WTO Law: GATT Article XX (g) Disputes and Their Implications
Authors: Chi Manjiao
Published: April 2022

Trade in natural resources is an important part of international trade and can be governed by World Trade Organization (WTO).Article XX (g) of the GATT 1994 is the only WTO rule that expressly employs the term 'exhaustible natural resources', but it is silent as to the meaning and scope of this term. There are in total nine General Agreement on Tariffs and Trade (GATT) and WTO disputes in which Article XX (g) has been invoked. In various disputes, the term 'exhaustible natural resources' has been interpreted within the framework of the Vienna Convention on the Law of Treaty. An exhaustive study of Article XX (g) disputes shows that there are several different scenarios in which this term has been interpreted, and that the Dispute Settlement Body (DSB) panels and the Appellate Body (AB) often held flexible and friendly attitudes when interpreting the term. Although WTO case law suggests that this term has been interpreted to cover a wide range of subjects, no consensus on the meaning and scope of this term in WTO law has been reached. Consequently, the threshold for invoking Article XX (g) exception remains high. This also helps explain how the DSB panels and the AB tried to balance the two seemingly conflicting policy aims of Article XX (g), i.e., ensuring free trade and protecting the environment. Given the world's increasing reliance on natural resources, persisting need for free trade and mounting concerns over environmental protection, Article XX (g) is highly likely to be invoked in more WTO disputes in the future. It remains to be seen how the term 'exhaustible natural resources' will be interpreted and what role Article XX (g) can play in international trade governance.
Domestic Tobacco Regulation and International Law: The Interaction of Trade Agreements and the Framework Convention on Tobacco Control
Authors: Lester Simon
Published: April 2022

For the most part, conflict between domestic tobacco regulation/international tobacco control instruments and international trade obligations is more imaginary than real. In practice, domestic regulation can be carried out consistently with trade obligations. Nevertheless, there is at least a small chance of actual conflict between international tobacco rules and trade obligations. Where such conflict arises, this paper argues that proper treaty interpretation requires that trade obligations, as the 'harder' version of law, would take precedence over conflicting tobacco rules. For public health advocates who have concerns about this, the solution is not to exclude tobacco from trade agreements, but to refine existing trade obligations.
Problems with the ASEAN Free Trade Area Dispute Settlement Mechanism and Solutions for the ASEAN Economic Community
Authors: Tat Lee Tsun
Published: April 2022

The Association of Southeast Asian Nations (ASEAN) is pushing for closer economic integration to maintain its competitiveness as a free trade area in the world economy. The push is to transform, by 2015, the ASEAN Free Trade Area (AFTA) into the ASEAN Economic Community (AEC).The AEC would create a single market for goods, services, and investments and a single production base for the region. Closer economic integration, however, requires an effective system for the settlement of the kind of disputes that inevitably arise from the further liberalization of trade and investment. To this end, in 2004,ASEAN adopted the Protocol on Enhanced Dispute Settlement Mechanism, which establishes a near rule-based Dispute Settlement Mechanism for the ASEAN Free Trade Area (AFTA DSM). In the decade since its establishment, the AFTA DSM has never been invoked. This article explores the limitations and constraints of the AFTA DSM and proposes an arbitration model as the ideal method of conflict resolution for ASEAN and the eventual AEC.
WCO Immediate Release Guidelines: State of Application in the Eve of the ATF Adoption
Authors: Sowinski Cezary
Published: April 2022

This article aims to research the current state of application of the WCO Guidelines for the Immediate Release of Consignments by Customs (the Guidelines) in the light of the WTO Agreement on Trade Facilitation (the ATF) with a view to provide for an initial step into the trade facilitation mapping exercise. Through use of the Guidelines as a reference for comparison of trade facilitation measures existing in the WCO Member Countries, it allows for stock taking of topics, which are crucial for the assessment of the country or territory alignment with the Guidelines and - consequently - large portion of the ATF. Covering 160 countries and territories of the world, it shows that the Guidelines are actually applied in the countries and territories covered by the research to a limited extent. The average score of the world comparing to the 'Ideal WCO Member' (ideal from the point of view of such express operator like DHL Express) is only 47% on average. This provides for a tangible information on how far the given country or territory deviates from the target WCO Member Country and how much - in terms of trade facilitation - is still to be achieved there.
Which Future for Competition in the Global Trade System: Competition Chapters in FTAs
Authors: Demedts Valerie
Published: April 2022

Globalization increases international competition, but it also entails an intensified risk for abusive and anti-competitive behaviour. The European Union's (EU's) capacity to rise to this challenge depends on the international mode of governance it decides to pursue and the determination with which it does so. The EU has always been a strong advocate of competition law within a WTO context. Recently, however, it has been far more active on a bilateral level, embedding competition provisions in a wide array of agreements. Free Trade Agreements (FTAs) constitute one of the venues the EU has chosen to include competition provisions. The evolution of the global trade system, and in particular the place of competition law within this system, is complex and uncertain. This article aims to contribute to the debate on whether, and if so, how competition regulation should fit into the global trade scheme, by focusing on competition chapters in FTAs. In order to fully assess their value, this contribution first analyses the need for such provisions, following which the past attempts of integrating competition in a trade context are studied, finally proceeding to an analysis and assessment of competition chapters in a selection of bilateral FTAs.
A Protectionist Bargain?: Agriculture in the European UnionCanada Trade Agreement
Authors: Hobbs Jill E.
Published: April 2022

The EU and Canada have been negotiating a preferential trade agreement - the Comprehensive Economic and Trade Agreement (CETA) - since 2009.The negotiations have been conducted in strict secrecy with an agreement only reached in late September 2014.This was the first time the text of the agreement was made public. This article examines those parts of the text of the agreement which pertain to agri-food trade. The facets of the agreement examined include those that directly affect agriculture - tariffs, TRQs, subsidies, safeguards and rules of origin - as well as other facets of the agreement that indirectly affect agriculture - pricing of wines, geographical indications, environment, sustainability, anti-dumping. The general conclusion is that little in the way of agricultural trade liberalization was achieved and protectionist interests were maintained.
Sustainable Development of Chinas Rare Earth Industry within and without the WTO
Authors: Gavin Brigid
Published: April 2022

China's rise to become the dominant global producer of rare earth minerals has caused severe environmental damage and rapid depletion of its natural resources. To rectify these problems and achieve sustainable development of the industry, the Chinese government has adopted a policy of export restrictions which has led to conflict with its trade partners. A World Trade Organization (WTO) panel has judged China's policy to be in violation of its trade obligations which has been upheld in appeal. This article presents a broad analysis of sustainable development relating to the rare earth industry. In recognizing growing global demand for these minerals, which provide essential inputs for the new green technologies, it explores how a more complementary relationship between economic development and conservation of natural capital can be achieved. Improving resource efficiency throughout the whole production chain is of key importance for resource conservation. The use of adequate environmental technologies and effective environmental policies are key to minimizing the risks for environmental damage and human health. The new initiative for liberalization of Environmental Goods and Services (EGS) in the WTO can make leading environmental technologies available at a lower cost for China. But green trade liberalization alone cannot achieve sustainable development. A new form of international cooperation in the form of networked governance must operate alongside the WTO to combine governance of global economic and ecological integration.

Since the publication of the Brundtland Report, the concept of sustainable development has been generally understood as the requirement to meet the needs of the current generation without compromising the ability of future generations to meet theirs.1 But this is a vague concept which has proved difficult to implement in practice. There is no internationally agreed method for measuring sustainable development and no internationally accepted indicators to monitor its progress in practice.2 In particular, there is no satisfactory indicator for 'natural capital' which is central to achieving sustainable development.

Natural capital is defined as the stock of natural resources or environmental assets that yields a flow of useful goods and services into the future.3 This concept creates a new synthesis integrating two previously opposing world views. On the one hand, man-made capital which comprises physical, financial and human capital, has well-established roots in economic theory. On the other hand, natural capital, comprising natural resources and the environment has been developed more recently by ecological economics. Whereas, man-made capital has been traditionally treated as a scarce good which is priced accordingly in the market, natural capital has for long been considered as part of the 'global commons' and so largely treated as a free good.4 But this dichotomy is no longer tenable today.
Labor Standards in U.S. Trade Politics
Authors: Janusch Holger
Published: April 2022

This article shows that since the early 1990s the inclusion of labor standards in trade agreements and the accordance of the national labor laws and practices of the trading partner with international standards have been a necessary condition for U.S. trade liberalization. If Democrats and Republicans were unable to reach agreement over the linkage of trade and labor, a liberal trade policy was difficult to achieve regardless of unified or divided government. On the other hand, a liberal trade policy became possible even under divided government if Democrats and Republicans agreed on labor provisions for trade agreements. Furthermore, the controversy over labor standards in trade agreements changed the relation between the President and Congress, because Congress increasingly acted as dominant trade policy maker not only in domestic politics but also in international negotiations.
Analysis of a New Mediation Procedure under the WTO SPS Agreement
Authors: Park Nohyoung , Chung Myung-Hyun
Published: April 2022

The Dispute Settlement Understanding (DSU) of the World Trade Organization (WTO) provides a basis for the Members to settle their disputes through Alternative Dispute Resolution (ADR) involving good offices, conciliation, and mediation, in addition to the formal dispute settlement procedures. However, ADR has not been operational so far under the DSU. The SPS Committee recently adopted a new mediation procedure under Article 12.2 of the SPS Agreement to facilitate a mutually agreed solution by the consulting Members. The Member participation in the mediation procedure is voluntary, and the consulting Members may decide the confidentiality of the information delivered or communications created during the mediation. In addition, the mediation procedure does not constitute a legally binding agreement, and the consulting Members are free to decide the acceptability of the mediation result. The role of the Facilitator is to encourage and facilitate exchange between the consulting Members, suggest possible ways to resolve the concerns, and issue a written factual report on the mediation. Although it is early to assess whether the new mediation procedure under the SPS Agreement is successful, its success is certainly to increase the possibility of introduction of a mediation procedure under other agreements of the WTO.
Circumvention of Anti-dumping: A Law and Economics Analysis of Proportionality in EU Rules
Authors: Erbahar Aksel , Puccio Laura
Published: April 2022

This paper deals with one of the controversial trade issues on the agenda for negotiations in the WTO since the Uruguay Round. Anti-circumvention rules (AC) allow the application of trade remedies to products that would fall outside the scope of the trade remedy regulation. The rationale is that some practices allow circumvention of the extra duties and so lessen the effective application of remedies. In this article, we argue that, in order to avoid protectionist abuses, these AC rules should only extend trade measures to those goods that both effectively circumvent and undermine those remedies, meaning the tests included in AC investigations must lead to the proportional application of AC measures. More specifically, we use a law and economics approach to analyse the proportionality of AC rules in the context of the largest AC user, the EU, who, according to our estimations, have extended its existing anti-dumping coverage by an additional annual import value of USD 2 billion via new AC measures imposed in 1995–2013.
The Eagle Meets the DragonTwo Superpowers, Two Mega RTAs, and So Many in Between: Reflections on TPP and RCEP
Authors: Lee Yong-Shik
Published: April 2022

The proliferation of regional trade agreements (RTAs) in recent decades and the intensifying rivalry among major trading nations has led to the creation of two mega RTAs, namely the Trans-Pacific Partnership (TPP) led by the United States of America and the Regional Comprehensive Economic Partnership (RCEP) led by China. Due to the importance of market access to these two economic superpowers, seven out of twelve TPP countries are also participating in the negotiations for RCEP, comprising half of the sixteen participating countries. This article discusses the development of these two mega RTAs, introduces their key provisions and approaches, and examines the dynamics and implications for trade that these mega RTAs would create.
Disciplining Clean Energy Subsidies to Speed the Transition to a Low-Carbon World
Authors: Condon Bradly J.
Published: April 2022

The purpose of multilateral disciplines on subsidies is to avoid trade distortions, in order to increase production efficiencies through competition. However, this objective may be defeated due to defects in the structure of the WTO Agreement on Subsidies and Countervailing Measures and the resulting interpretations of WTO tribunals in cases involving clean energy subsidies. These defects, together with inefficient design of energy markets, could slow the transition to clean energy sources. However, the necessary reforms to the multilateral subsidies regime and energy markets are unlikely to be implemented any time soon, in the absence of a successful formula for multilateral negotiations. In this environment, the private sector will have to take the lead in making the transition to clean energy sources, in order to mitigate the disastrous effects of climate change to the extent that this goal remains attainable.
The Case for Dropping Preferential Rules of Origin
Authors: Mavroidis Petros C.
Published: April 2022

In this article, we argue that the world trading system could do without preferential rules of origin. Preferences can be granted on the basis of most favoured nation (MFN) rules of origin anyway. Empirical literature suggests that, if the purpose for enacting preferential rules of origin was to facilitate commerce or promote inward investment, then their implementation has in practice defeated the purpose. Beneficiaries of preferences often prefer to trade using MFN rules of origin, rather than going though cumbersome procedures to show that they can ‘benefit’ from preferential rules. Thus, in the end, preferential rules of origin are neither necessary for preferences to be granted, nor have they facilitated trade or investment. Our policy recommendation for the negotiators of the Harmonized Working Programme (HWP), which aims to establish common rules of origin for all WTO members, is to also decide to outlaw preferential rules of origin.
Adaptation of Internal Trade Requirements in RTAs: Substandard Internal Trade Liberalization
Authors: Bum Kim Jong
Published: April 2022

GATT Article XXIV:8 requires regional trade agreement (RTA) parties to eliminate duties in substantially all the trade (SAT) between the parties. However, this requirement has not been seriously enforced during GATT and WTO years because WTO members have not agreed to an exact definition of SAT. Nevertheless, some WTO members examining RTAs in the WTO Committee on Regional Trade Agreements (CRTA) expressed the view that elimination of tariffs in 90% of tariff lines satisfies the SAT requirement on the ground that the average of tariff elimination coverage of RTAs is 90%. RTA parties with tariff-elimination coverage below the average level have adapted to this perceived norm by prolonging tariff elimination schedules or by using subjective measures of internal trade liberalization. Paradoxically, the adaptations support the argument that the GATT Article XXIV:8 requirement is an operationally binding constraint on the RTA parties, although there is no agreement on any fixed percentage of internal-trade-liberalization coverage that meets the Article XXIV:8 requirement.
The League of Arab States Trade Boycott of Israel a Passé: Time for Renewed Debate
Authors: Slawotsky Joel
Published: April 2022

The Arab League should evaluate whether the motivation of national security is a reasonable excuse to restrict free trade with Israel in 2018 and furthermore – assuming arguendo a good faith bona fide threat exists – whether the boycott even constitutes an effective tool to advance national security. Israel and Arab countries have their legal arguments that they can use to justify the Arab League boycott or to invalidate it. The use of the national security exception in international economic law must be evaluated on the bottom-line question of effectiveness. The boycott has proven ineffective and is now increasingly counter-productive due to transformative regional and global developments. Free trade and efficient markets combined with the ability of talented individuals to work without discrimination and restriction are the hallmarks of vibrant economies and stability – true national security. While the establishment of the boycott–over seventy years ago – may at one time have served a perceived national security goal, there is no longer such a need. Continuing the boycott undermines the WTO’s commitment to free trade and prosperity which ultimately harms all parties and their national security and harms the greater global interest in international stability for all parties.
The Future of Deep Free Trade Agreements: The Convergence of TPP (and CPTPP) and CETA?
Authors: Wang Heng
Published: April 2022

Focusing on Trans-Pacific Partnership (TPP), Comprehensive and Progressive Agreement for Trans- Pacific Partnership (CPTPP) and Comprehensive Economic and Trade Agreement (CETA) as deep free trade agreements (FTAs) that concentrate on regulatory disciplines, this article examines a key question concerning the future of deep FTAs: do deep FTAs converge and, if so, why? It argues that, first, deep FTAs converge in their approach to trade and investment in two crucial respects: regulatory disciplines and dispute settlement. CPTPP narrows its gap with CETA through suspending rules in arguably most controversial aspects of TPP (i.e. intellectual property and investor-state dispute settlement [ISDS]). Differences emerge but are not unbridgeable, and convergence varies depending on the area. Second, the reasons for the convergence include shared FTA objectives (particularly regulatory protection), the development of FTA rules from WTO norms, and other factors (e.g. the lessons drawn from previous ISDS experience, the inherent limit of FTAs, and membership overlap). Finally, the convergence of deep FTAs has the potential to bridge most if not all differences if there is political willingness.
Changing the Rules Mid-Game: The Compliance of the Amended EU Basic Anti-Dumping Regulation with WTO Law
Authors: Huyghebaert Kiliane
Published: April 2022

Giving effect to the expiration of section 15 of China’s Accession Protocol, the European Union amended the basic Anti-Dumping Regulation and removed the non-market economy treatment previously included in Article 2(7) of the Regulation. Instead, the EU introduced the new concept of ‘significant distortions’. In short, when a market is characterized by significant distortions as listed in Article 2(6) of the basic Regulation, the EU finds it inappropriate to base the calculation of the normal value on the prices resulting from such market. Accordingly, in that situation, the Commission will calculate the normal value on the basis of the prices or costs of a representative country, undistorted international prices, costs or benchmarks or domestic costs but only to the extent that they are not distorted. This new anti-dumping method gives rise to compatibility questions with WTO law, more specifically with Article 2.2, 2.2.1.1 and 2.4 of the Anti-Dumping Agreement. This article examines whether the amended basic Anti-Dumping Regulation violates the Anti-Dumping Agreement or whether the Anti-Dumping Agreement can be interpreted in accordance with the basic Regulation.
Unilateral Trade Measures Against Illegal, Unreported and Unregulated Fishing: Unlocking a Paradigm Change in Trade-Environmental Partnerships?
Authors: He Juan
Published: April 2022

The decades-long yet steady transition of the World Trade Organization (WTO) from value judgment towards procedural empowerment delivers a new impetus to consolidated trade-environmental partnerships in a collective campaign against illegal, unreported and unregulated (IUU) fishing. Although there is an ideal preference for multilateral approaches to address the widespread phenomena of IUU fishing and associated human rights injustice, this article probes an increasingly proactive role of unilateral trade measures to close the supply chain loopholes for IUU-caught fish to enter commerce. Unilateral and trade-restrictive modalities against IUU fishing are embodied by the 2008 European Union IUU Regulation and the 2016 United States Seafood Import Monitoring Program. Innovative trade paradigms should avoid compromising the consensus-building momentum under multilateral governance frameworks in the longer term. Better regulated and coordinated unilateral measures can become a useful pathfinder to globalized strategies. To this end, the WTO needs to work more closely and effectively with the Food and Agriculture Organization and regional fisheries management organizations to ensure that unilateral responses are transparent, well-reasoned and emerge from a rational process of communication and argumentation among supply chain parties.
Digital Trade and Dispute Settlement in RTAs: An Evolving Standard?
Authors: Froese Marc D.
Published: April 2022

There were 288 regional trade agreements (RTAs) in force at the end of 2018, approximately one quarter (27%) of which included digital trade provisions. These e-commerce chapters have evolved from simple statements, to more comprehensive attempts to cultivate digital trade. This article tests the hypothesis that as e-commerce chapters have become more common and more detailed, their legal enforceability has also risen. Enforceability is measured using a qualitative empirical analysis of seventy-eight e-commerce chapters in RTAs notified to the World Trade Organization. The first section reviews recent initiatives to map and track e-commerce provisions in RTAs. The second section uses count data and text-as-data to develop a time-sequence, process tracing examination of the relationship between e-commerce chapters and dispute settlement. The analysis emphasizes the trajectory of development, from earliest related provisions in 2001 to next-generation agreements such as the Trans-Pacific Partnership (CPTPP) and the newNorth American agreement, the United States-Mexico-Canada Free Trade Agreement (USMCA). The conclusion provides a discussion of the consequences of this evolving relationship for the multilateral governance of trade at the WTO.
Regulating Trade in Forest-Risk Commodities
Authors: Partiti Enrico
Published: April 2022

There is considerable urgency in addressing the impact from the production of certain agricultural commodities on ecosystems and local communities. Forest-risk commodities (FRCs) such as cocoa, coffee, palm oil, rubber, soy, maize and beef generate negative impacts on deforestation, ecosystem destruction and human rights of the communities affected. In light of the international obligations entered into by the European Union (EU) and its Member States, this article proposes a possible measure regulating the entry into the EU market of FRCs via due diligence requirements for traders. It subsequently assesses its compliance with international trade law obligations under Articles I:1, III:4 and XX of the General Agreement on Tariffs and Trade (GATT). The article illustrates that it is possible to design World Trade Organization (WTO) compliant legislation addressing trade in FRCs. In assessing compatibility of the proposed measure, the article suggests possible approaches to implement sustainability criteria for FRCs.

WTO law, deforestation, forest-risk commodities, human rights due diligence, nondiscrimination, trade and environment, EU value chain regulation
The Sustainability of the WTO Dispute Settlement System: Does It Work for Developing Countries?
Authors: Wood Jacob , Wu Jie
Published: April 2022

Our study provides an econometric analysis of whether developing countries are disadvantaged by theWorld Trade Organization’s (WTO’s) dispute settlement procedure. Despite the many successes of the Dispute Settlement Board (DSB), there is a need to better understand the overall effectiveness of the dispute mechanism. Using bilateral data of WTO members from 1995 to 2017, this article describes the influencing factors for developing countries’ participation in the dispute settlement process. By conducting a rare events logistic regression analysis, the results from this study show that the key factors that determine the ability for a developing country to initiate a dispute against another country include the export intensity, retaliation capability, economic power, and economic threat from potential defendant countries. This means that not all developing countries can participate in trade dispute settlement mechanisms, so the WTO dispute settlement system has relative legitimacy. In addition, we further compare and analyse the influence of these four dimensions over different time periods and in different target countries through seemingly unrelated estimations.

WTO, dispute settlement system, developing country
Countervailing Measures and China’s Accession Protocol to the WTO
Authors: Van Vaerenbergh Pieter , Bungenberg Marc
Published: April 2022

The existing policy tools of the European Union (EU) to fight against dumping and foreign subsidies do not cover all potential effects of foreign subsidies or support schemes by third countries on the EU internal market. As part of the ongoing discussions to address these distortive subsidies, this article highlights section 15(b) of China’s Accession Protocol to the World Trade Organization (WTO). The provision remains largely unexplored, both in practice and in case law, but offers advantages in its application compared to the normal trade remedy calculation rules: There is no explicit stipulation of an expiration (no fifteen-year timeframe), the threshold to rely on the section is relatively low (only ‘special difficulties’ need to exist), and the way how to determine the benchmarks for the benefit is open (both adjustments and alternative methodologies are foreseen). Particularly, within the stage of examination of ‘special difficulties’, the Commission has considerable latitude and may introduce a shift of burden of proof, putting the onus on Chinese exporters to prove they do not benefit from state subsidies. WTO Members should start conducting well-coordinated countervailing investigations domestically and initiate cases at the WTO at the same time to find out where the WTO system sets the limits of applying section 15(b) Chinese Accession Protocol (CAP).

Countervailing Duties, Anti-Subsidy, China’s Accession Protocol, section 15(b) CAP, Industrial Policy, Foreign Subsidies, State-Owned Enterprises, Burden of Proof, Alternative Benchmarks, Subsidy Benefit
The Chinese Conception of the Rule of Law and Its Embodiment Under the ‘Belt and Road’ Initiative (BRI)
Authors: Che Luyao
Published: April 2022

Although China has consolidated the aim of reforming its society towards the rule of law, the Chinese version of the rule of law differs significantly from its counterparts in the Western tradition. Increasing attention is being paid to the peculiarities of the Chinese conception as China strives to expand its influence through launching the ‘Belt and Road’ Initiative (BRI). This article focuses on the question of whether and by what means various BRI projects are impacted by and impact upon the Chinese conception of the rule of law. The uniqueness of the Chinese approach can be examined from three dimensions: the ontological dimension, describing the preference for integration over convergence in the governance models of economies; the epistemological dimension, in which a posteriori justifications prevail over a priori ones; and the methodological dimension, in which the coordination between the public and the private spheres overshadows the confrontation between them. Following this, the paper profiles the practices of BRI investment and assesses whether these practices present consistently with the Chinese conception. Finally, this article examined the strong needs often embedded within BRI projects that call for sustainable cooperation, market-generating governmental intervention, as well as the coordination of various social interests. All these factors are consistent with the peculiarity of the Chinese conception of the rule of law. The paper argues that the BRI is highly consistent with the Chinese conception of the rule of law and may help further enhance it. This conclusion further suggests that the distinctive conception is not solely the result of ideological or political factors but also of the unique demands of certain types of economic undertakings.

World Trade Organization, WTO, World Economic Forum, WEF, business community, stakeholder engagement, institutional change, collaboration, reform (OFDI), state-owned enterprises (SOEs), state-directed economies
Labelling Settlement Products: When EU Consumer Law Meets Public International Law (But Ignores International Trade Law)
Authors: Harpaz Guy
Published: April 2022

How should products produced in occupied territories be labelled for export? In recent years, Courts in the UK and Canada addressed this technical yet politically-charged question, in the context of the Israeli-Palestinian conflict. More recently, the Court of Justice of the EU was asked to determine the mandatory requirements under EU consumer law of indication of origin of products produced in settlements situated in territories occupied by the State of Israel, namely the Golan Heights, theWest Bank and East Jerusalem. In Organisation juive européenne the Court of Justice established that although EU consumer law refers to the need to supply information regarding the country of origin or the place of provenance, those provisions should be interpreted as requiring that foodstuffs originating in an occupied territory must bear not only the indication of that territory but also the indication of that provenance (i.e. indication that it comes from an ‘Israeli settlement’). In imposing broad labelling requirements, the Court heavily relied on both the notion of ‘ethical considerations’ under EU consumer law and on international law, boldly addressing some of the contentious legal and political issues at stake. In adopting this approach, the Court contributed to the harmonious reading of EU consumer law and public international law. Yet its heavy reliance on public international law should be contrasted with its failure to rely on international trade law, a neglect that contributed to selective and discriminatory treatment of Israeli settlement products. Moreover, in imposing broad labelling requirements, the Court shifted its focus from the EU and its Member States to the ultimate EU consumers, thereby advancing the private enforcement of international law in lieu of public enforcement.

settlement products; interface between public international law and international trade law, EU-Israel relations
Standardization of Complex and Diversified Preferential Rules of Origin
Authors: Jitsuya Hasegawa
Published: April 2022

The growing number of free trade agreements (FTAs) and economic partnership agreements (EPAs) and the divergent contents of their preferential Rules of Origin (RoO) have led to the increasing complexity and diversity of such regulations. This has caused considerable concern among all parties involved in international trade. Although there has been some progress in attaining convergence of RoO in some product areas, particularly chemicals, similar initiatives have not been successful in other sectors, such as agricultural products, textiles, iron, steel and machinery. Instead, preferential RoO in these industries remain heterogeneous and often incompatible. This article examines the current state of preferential RoO. The regulatory rationale is analysed by separating the ‘content of rules’ from the ‘way of expressing rules’, with a focus on the World Trade Organization’s HarmonizationWork Programme of Non-Preferential Rules of Origin (HWP) and how this has influenced the development of preferential RoO. In addition, this article proposes the standardization of preferential RoO in key product sectors by harmonizing and simplifying the ‘way of expressing rules’ according to the ‘content of the rules’ to reduce disparities in the regulations.

Rules of Origin, Preferential Rules of Origin, Non-Preferential Rules of Origin, Free Trade Agreements, Economic Partnership Agreements, World Trade Organization, Harmonization Work Programme
The Boundary of Supranational Rules: Revisiting Policy Space Conflicts in Global Trade Politics
Authors: Guan Chuanjing , Xu Qinyi
Published: April 2022

While global value chains (GVCs) necessitate effective global economic governance in providing a stable, rule-oriented international economic order for the cross-border flow of factors, it is witnessed that there’s an inevitable decline of multilateralism in the WTO in the contemporary era of deep globalization. This empirical puzzle has stimulated various theoretical explorations, including research on the multilateral trade negotiation model, North–South structural conflicts, and the absence of great power responsibility. The increasing friction between great powers around trade policy has illustrated that policy space conflicts constitute the central challenge of global trade governance. Policy space as a concept illustrates the scope and conditionality of domestic policy instruments when framed by supranational rules. By revisiting existing research, this article clarifies the nature of policy space and categorizes its conflict modes as regulatory diffusion, regulatory differentiation, regulatory competition, and regulatory conflict. The practice of global economic governance shows that deep globalization requires the convergence of diverse domestic regulations that reduce policy space; while maintaining competitive advantage of sovereign states in the global production system requires the preservation of certain flexibilities, especially in areas like interventionism, sequential reforms, or capacity building. This inherent tension causes policy space conflicts to evolve in kind with the escalation of competition among great powers in the global division of labour. Since 2017, the WTO reform agenda, US–EU–Japan trilateral coordination, and intense Trumpian trade wars have all proved that regulatory conflict has offered the dominant model. This shift has led to the decline of multilateralism and the weakening of the multilateral trading system.

policy space, multilateralism, global value chains, regulatory competition, global trade politics, convergence and de-convergence, WTO reform
The Principle of Ne Bis in Idem in EC Antitrust Enforcement: A Legal and Economic Analysis
Authors: Wils Wouter P. J.
Published: April 2022

This article deals with the application of the principle of ne bis in idem in EC antitrust enforcement. The principle of ne bis in idem, laid down in Article 4 of Protocol No. 7 to the European Convention on Human Rights and in Article 50 of the Charter of Fundamental Rights of the European Union, is the European equivalent of the double jeopardy clause in the United States. It contributes to efficient law enforcement, in that it prevents over-punishment, creates incentives for efficient prosecution, prevents vexatious multiple prosecutions and creates incentives for efficient coordination between prosecutors. The application of the principle of ne bis in idem is of particular importance in the context of the EU network of competition authorities set up by Regulation No. 1/2003. It will have the likely and desirable effect of inducing effective coordination between the European Commission and the competition authorities of the Member States as well as harmonization of their laws and policies on fines and leniency.
Regulating the Market: Competition Law and Policy in Kenya and Zambia
Authors: Olofinbiyi Tolulope , Boadu Fred O.
Published: April 2022

There is broad agreement that the transition to a market-based economy in countries in Sub-Sahara Africa (SSA) requires supporting institutions to be successful. This article discusses efforts by Kenya and Zambia to improve market performance with the enactment and implementation of a competition law. Kenya established the Monopolies and Prices Commission (MPC) and Zambia established the Zambia Competition Commission (ZCC). These Commissions are responsible for monitoring such market practices as restrictive business practices, control of monopolies and concentration of economic power, and mergers and takeovers that could have anti-competitive effects. The article concludes that for the laws in the two countries to achieve their intended objectives, there is a need to fine-tune provisions to remove ambiguities, harmonise these laws with other trade laws to prevent jurisdictional problems, guard the independence of the Commissions against political interference, and strengthen the human and technical resources of the Commissions in the areas of market research and competition analysis. This latter need calls for considerable donor support given the budget constraints facing the two countries. The study finds the efforts in these countries laudable and worthy of study by other countries in SSA that are interested in developing market-monitoring institutions.
International Competition Network The State of Play after Naples
Authors: Todino Mario
Published: April 2022

In this article the Author intends to provide a comprehensive picture of the International Competition Network (ICN), a recently established informal forum whereby competition agencies from all over the world, in cooperation with other instances (industry, academia, practitioners), discuss issues of common interest in the exclusive field of antitrust. The purpose of the initiative is to improve world-wide cooperation and thus convergence among competition agencies throughout the world, as well as to encourage developing countries to enforce a sound competition policy. After describing the main features of the Network, as well as the outcome of its first Annual conference held last September in Naples, the Author focuses on some sensitive issues. In this respect, while recognising that ICN is probably the most important and successful initiative which has been lately launched in the field of antitrust international cooperation, a number of potential problems are identified. Among them, the most serious risk that ICN runs is that it will become an initiative monopolised by a few developed countries discussing issues of exclusive interest to them. An effort should therefore be made to further reinforce the participatory nature of the initiative. A second risk is that ICN recommendations will not be adequately implemented by its members.
Taxonomy of Non-Market Economics for European Competition Policy The Search for the True Competitive Price
Authors: McNutt Patrick A.
Published: April 2022

We argue that competition is a process, and as such can be described, rather than defined. No parameter of interest to competition assessment should be estimated in isolation without reference to the history of prices and quantities in a market and the strategic interactions of the firms. An alternative to the approach adopted by DG Competition for modelling tacit collusion and dynamic coordination would be to incorporate directly into competition assessment models some reason for history to matter. With a new package of reforms from DG Competition in Brussels, now may be the time for European competition analysis to embrace more fully elements of public choice, law and economics, and game theory. Collectively, they represent non-market economics. Nonmarket economics for the purposes of this article is therefore based on the conception of economics as the science of rational choice and strategic reaction rather than merely the study and analysis of economic markets. Understanding competition law and understanding non-market economics are challenges that go hand in hand.

“The pleasures of the retrospective view; attractive though they are, are not for me—or you—since we always must renew; the habit of re-learning how to see.”
Self-incrimination in EC Antitrust Enforcement: A Legal and Economic Analysis
Authors: Wils Wouter P. J.
Published: April 2022

Competition authorities need to obtain intelligence and evidence of antitrust violations so as to be able to punish the antitrust violators and create deterrence. The best information will usually be in the hands of the antitrust violators themselves. The first part of this article gives an overview of the legal instruments which are available to the European Commission and the competition authorities of the Member States in order to collect intelligence and evidence of violations of Articles 81 or 82 EC from the undertakings that have committed these violations or from their staff. The limitations flowing from the privilege against self-incrimination are discussed in particular. The second part of the article contains an economic analysis of the use of direct force, compulsion and leniency as three methods to obtain intelligence and evidence from antitrust violators, including an economic interpretation of the privilege against self-incrimination. Comparing the strengths and weaknesses of the use of direct force, compulsion and leniency, it appears that a combination of these instruments is required for effective and efficient antitrust enforcement.