bluuebunny/crossref_metadata_2025 huggingface dataset:
Possible Shielding Effects of Article 27 on Workers Rights to Information and Consultation in the EU Charter of Fundamental Rights
Authors: Olsson Petra Herzfeld
Published: April 2022

A number of EU directives as well as Article 27 in the EU Charter of Fundamental Rights (CFR) deal with workers’ rights to information and consultation in the undertaking. In this article, the added value of including such rights in the EU CFR is discussed. For this purpose, three issues relevant for the interpretation of Article 27 will be addressed. First, to what extent is the rights/principles distinction in the CFR relevant for the legal implications of Article 27 CFR? Second, what conclusions can be drawn from the wording of the Article? Third, what is the impact of the context, or rather to what extent should the development and recognition of rights to information and consultation within other parts of EU law and in the Revised European Social Charter (RESC), affect the interpretation of Article 27 CFR? Two hypothetical situations are examined to establish whether any added value can be detected. The first considers the extent to which Article 27 can act as a shield against attempts by the EU legislator to restrict rights to information and consultation in the existing secondary EU legislation. The second investigates to what extent Article 27 can act as a shield against attempts to restrict national legislation on information and consultation with the support of, for example, Article 16 CFR on Freedom to conduct a business. It is argued that the content of Article 21 RESC should be taken into account when the content of Article 27 is invoked, and that the legality of the restrictions discussed in the hypothetical situations depends on whether they will pass the justification test provided in Article 52.1 CFR. When applying those suggestions, it seems that Article 27 can play a significant role in safeguarding worker’s rights to information and consultation within the EU.
From the Right to Work to Freedom from Work: Introduction to the Human Economy
Authors: Bueno Nicolas
Published: April 2022

It may appear to be paradoxical to celebrate work as a human right in an economic system in which for many work is associated with activities that are rather repetitive or stressful, sometimes meaningless, and seldom freely chosen. After presenting the content and historical origins of the human right to work, as defined in Article 6 of the International Covenant on Economic, Social and Cultural Rights, this article argues that the right to work cannot be universally fulfilled in the contemporary state-centred global economy. Moving beyond economic discussions placing too much attention on how to provide enough but sometimes unfulfilling work, the article examines the human potential to reduce the need to work. It outlines the theoretical and definitional foundations of the ‘human economy’, where human potential and creativity are rewarded in order to make the transition from the right to work to the freedom from work. The human economy is a potentialist approach in which the right to be free to choose work plays an increasing role
Challenges in Germanys Implementation of the ILO Decent Work for Domestic Workers Convention
Authors: Trebilcock Anne
Published: April 2022

Germany faces several challenges in fully applying the Decent Work for Domestic Workers Convention, 2011 (No. 189), in force for it since 2014. This article examines the situation in the light of (1) the Government’s assertion that ratification did not entail any need for legislative change; (2) domestic work in the context of the country’s overall demographic and labour market context, along with recommendations of a Government-appointed panel of experts on gender equality, and (3) the 2017 direct request to Germany concerning implementation of the Convention, made by the International Labour Organization (ILO) Committee of Experts on the Application of Conventions and Recommendations. The article argues that although much – but not all – of German labour law already applies to domestic workers on an equal footing with other workers, the Government still needs to take a number of steps to apply the Convention in full. The Government’s blanket exemption of ‘live-ins’ from the Convention’s scope concerns primarily those who come from Central and Eastern European countries, under various legal constructs, to care for older persons at home without maximum hours protection. The country’s exclusion of all domestic workers from the main health and safety laws is also problematic, as are some constraints on access to justice. In addition, the widespread phenomenon of undeclared paid domestic work calls for strengthened enforcement of existing legislation. Addressing these and other issues will be important not only for improving the lot of domestic workers in Germany, in line with the Convention, but also for ensuring sustainable quality care provision in a rapidly aging society while promoting greater labour market participation for women.
The Continuing Resonance of Breadwinner Norms: the Australian Labour Law Experience
Authors: Chapman Anna
Published: April 2022

In the second half of the twentieth century many feminist law reform projects were pursued in Australia, including new legal rights to non-discrimination and the adjustment of labour laws in order to support women in the labour market. This article unpacks Australian developments in work related legal entitlements designed for the purpose of supporting women in paid work, including those designed more broadly to assist workers, including men, with responsibilities to care for others such as children or elderly relatives. It examines the extension of these rights to LGBT workers. The paper reveals ways in which Australian developments have displaced some markers of the breadwinner ideology of earlier legal regulation, whilst at the same time replicating central aspects of those social and cultural sets of understandings.
Expanding the Movement of Natural Persons Through Free Trade Agreements? A Review of CETA, TPP and ChAFTA
Authors: Engblom Samuel , Ekman Åsa Odin
Published: April 2022

Researchers and international institutions have tried to solve a fundamental paradox in the politics of migration. While introducing stricter migration policy stands high on the agenda of many countries, demographic facts suggest that they will need to introduce more extensive labour immigration to avoid labour shortages. Meanwhile, attempts to introduce a legally binding international regime on labour mobility, most ambitiously through Mode 4 of the General Agreement on Trade in Services (GATS) and as requested by developing countries, have had limited success. This article explores one of the political options for resolving this: regulating the movement of natural persons through free trade agreements. It examines three recently concluded free trade agreements (FTAs), the EU–Canada Comprehensive Economic and Trade Agreement (CETA), the China–Australia Free Trade Agreement (ChAFTA) and the Trans-Pacific Partnership (TPP), in an attempt to answer two questions. First, do the signatories commit to more expansive possibilities for labour mobility than through the GATS? Second, what has the political reception of such measures been? While most of the signatories are willing to schedule more far-reaching commitments through FTAs than through the GATS, these commitments typically fall within the realm of existing work permit systems in domestic law. In addition, we find examples of political backlash in countries that have included somewhat more ambitious mobility provisions in FTAs, particularly in Australia. These FTAs may still play a role by improving mutual recognition of skills, and limiting the impact of national reforms to restrict labour migration. However, we conclude that FTAs appear to be neither a manifestly successful instrument for significantly liberalizing labour mobility, nor an evidently desirable one. We call for a more holistic approach that refrains from temporary labour mobility programmes to meet permanent demand for labour, with respect for migrant workers’ rights at its core.
People with Intellectual Disabilities and Employment Discrimination Law: A US Case Study
Authors: Bell Mark
Published: April 2022

This article explores how anti-discrimination law has been applied in relation to employment discrimination faced by people with intellectual disabilities. Although disability discrimination laws are now found in many states, there has been relatively little litigation by those with intellectual disabilities as regards employment discrimination. This article examines experience in the USA in order to identify the potential of anti-discrimination law, as well as its limitations in practice. It considers litigation brought by individual plaintiffs, as well as enforcement actions by public bodies. This concerns employment in the open labour market, but also sheltered employment schemes. The article concludes by reflecting on what lessons may be derived from US experience.
In Memoriam: Jacques Rojot (1941–2020)
Authors: Neal Alan C.
Published: April 2022

Occupational Welfare, Social Welfare, Collective Agreements, Employee Unions, the Social Partners, Pension, Disability Benefits, Minimum Wage, Israel
The State Giveth and Taketh Away: Public Sector Labour Law, the Legitimacy of the Legislative Override Power and Constitutional Freedom of Association in Canada
Authors: Mummé Claire
Published: April 2022

This article investigates the role of courts and legislatures in the design and enforcement of labour laws in the context of public sector employment. It does so by focusing on government employers’ legislative ability to temporarily override public sector labour rights, or to displace outcomes achieved under their processes. This issue is analysed through a case study of Canada, a country which offers constitutional protections for freedom of association, but which is also constructing a highly deferential approach to the constitutional review of override statutes. As a result of this deference, governments have been afforded significant leeway in the use and design of override legislation, which serves to undermine the legitimacy of the underlying public sector labour law regime. The result is to shake the confidence of public sector employees in the promise of workplace power redistribution and workplace voice and to undermine the legitimacy of public sector labour law. Because override legislation can so fundamentally undermine public sector labour rights, the courts should avoid excessive deference and instead undertake an active constitutional review of their use, where constitutional protections are available.

Judicial Deference; Public Sector Labour Law; Legislative Override; Freedom of Association; section 2(D); The Canadian Charter of Rights and Freedoms; The Expenditure Restraint Act, Pre-Legislative Consultation; Legitimacy; Special Interests
Is That Lawful? Data Privacy and Fitness Trackers in the Workplace
Authors: Collins Philippa , Marassi Stefania
Published: April 2022

Data collected from fitness trackers worn by employees could be very useful for businesses. The sharing of this data with employers is already a well-established practice in the United States, and companies in Europe are showing an interest in the introduction of such devices among their workforces. Our argument is that employers processing their employees’ fitness trackers data is unlikely to be lawful under the General Data Protection Regulation (GDPR). Wearable fitness trackers, such as Fitbit and AppleWatch devices, collate intimate data about the wearer’s location, sleep and heart rate. As a result, we consider that they not only represent a novel threat to the privacy and autonomy of the wearer, but that the data gathered constitutes ‘health data’ regulated by Article 9. Processing health data, including, in our view, fitness tracking data, is prohibited unless one of the specified conditions in the GDPR applies. After examining a number of legitimate bases which employers can rely on, we conclude that the data processing practices considered do not comply with the principle of lawfulness that is central to the GDPR regime. We suggest alternative schema by which wearable fitness trackers could be integrated into an organization to support healthy habits amongst employees, but in a manner that respects the data privacy of the individual wearer.

Fitness Trackers, GDPR, Privacy, Data Protection, Employment, Principle of Lawfulness, Fitbit, Apple Watch
A Review of Closing the Enforcement Gap: Improving Employment Standards Protections for People in Precarious Jobs, by Leah F. Vosko et al.
Authors: Bartkiw Timothy J.
Published: April 2022

Fitness Trackers, GDPR, Privacy, Data Protection, Employment, Principle of Lawfulness, Fitbit, Apple Watch
New Battle Lines in the Anti-Dumping War – Recent Movements on the European Front
Authors: Driessen Bart
Published: April 2022

“It’s time to demythologize an era and build a new myth from the gutter to the stars. It’s time to embrace bad men and the price they paid to secretly define their time. Here’s to them.”

James Ellroy
Foreign Direct Investment and Regional Trade Liberalization: A Viable Answer for Economic Development?
Authors: Lee Yong-Shik
Published: April 2022

Regional trade liberalization and foreign direct investment (FDI) have proliferated in recent decades. Many believe that free trade and FDI facilitate economic development, and developing countries have been encouraged to participate in free trade agreements (FTAs) and accept FDI to meet their development objectives. This article considers whether free trade and FDI may replace the role of the state in facilitating industries for development and promote economic development without initial economic welfare losses associated with state industrial promotion and trade protection. The article also considers how recent developments in the regulatory environment concerning FTAs and FDI affect the development interest of developing countries.
GATS 2000 Negotiations and India: Evolution and State of Play
Authors: Das Kasturi
Published: April 2022

In the recent past, trade in services has emerged as one of the most contentious areas of the multilateral trade negotiations. In line with the “built-in” agenda of the General Agreement on Trade in Services (GATS), a new round of services negotiations, termed “GATS 2000”, was launched in January 2000, which were subsequently subsumed by the Doha Development Agenda in November 2001. India, from being a leading opponent of the GATS during the Uruguay Round, has now emerged as one of the forerunners of the services trade liberalization under the GATS. Given this backdrop, this article tracks the evolution of the GATS 2000 negotiations and puts forward a concise overview of the state of play, with a special reference to India.
WTO Negotiation in Financial Services: Standing Offers Disappoint
Authors: Brown Richard W. , Herfindahl Erland
Published: April 2022

This article reviews the goals of the current financial services negotiations as articulated by participants and academics. The article then presents the estimated price effects of non-tariff impediments to trade in banking services. Price effects, expressed in this article as tariff equivalents (TEs), are estimated for banking commitments bound in the WTO’s Financial Services Agreement and for negotiating offers tabled as of May 2005. Comparison of these TEs suggests that progress to date has been limited. Though several countries have tabled genuinely market-liberalizing offers, many more have tabled offers that suggest little or no market opening. Major goals of the Doha Development Agenda (DDA) in regard to banking remain unfulfilled, often at significant cost to the countries preserving trade restrictions.
The Single Euro Payments Area (SEPA) and its Compatibility with the GATS Disciplines on Financial Services
Authors: Vranes Eirhc
Published: April 2022

This article examines the compatibility of the EU’s Single Euro Payments Area (SEPA), which is meant to establish a common market for non–cash payments in Europe, with the GATS. For this purpose, this article gives a brief introduction to the SEPA project and to the GATS’ rules on financial services, which have received comparatively little attention in academic writings so far. Moreover, the article addresses the question under which conditions private action—such as the SEPA project—can be attributed to WTO Members under the GATT and the GATS, respectively.
An Empirical Examination of Product and Litigant–Specific Theories for the Divergence Between NAFTA Chapter 19 and US Judicial Review
Authors: Colares Juscelino F.
Published: April 2022

Empirical analysis of NAFTA panel review has shown that panels reverse US agency trade remedy determinations twice as often as US courts. Recent studies have eliminated case selection and other hypotheses as potential explanations for this divergence. In this article, Probit regressions show that case docket differences, such as type of import or litigant identity, also cannot account for this discrepancy. As NAFTA panels must apply the same law and standards of review as the US courts they replace, this divergence presents serious questions regarding US Congressional acquiescence to the operation of NAFTA panels and encourages discussion of the role or absence of popular preferences in the trade policy process (J.E.L., F 13, F 53, F 55, K 33).
Considerations on the Mercosur Dispute Settlement Mechanism and the Impact of its Decisions in the WTO Dispute Resolution System
Authors: Lucarelli de Salvio Gabriella Giovanna , Sá Cabral Jeanine Gama
Published: April 2022

This article analyses the evolution of the dispute settlement mechanism (DSM) of the Common Market of the South (Mercosur) from its establishment to the current confi guration, compares it with the mechanisms of the European Union (EU) and the World Trade Organization (WTO) and examines certain Mercosur decisions that are intertwined with WTO rulings, revealing the delicate relation between regional trade agreements (RTAs) and the multilateral trading system.
Provisional Measures Under Article 5.7 of the WTO’s Agreement on Sanitary and Phytosanitary Measures: Some Criticisms of the Jurisprudence So Far
Authors: Lang Andrew T.F.
Published: April 2022

The purpose of this article is to identify two potential diffi culties in the application of Article 5.7 which appear to follow from certain statements made by panels and the Appellate Body in the jurisprudence under that Article so far. The fi rst relates to the situation in which a WTO Member legitimately takes provisional measures under Article 5.7, but refuses to conduct further research as required by that Article. In such circumstances, it is argued, the relevant violation is the failure to conduct further research, not the taking of provisional measures – and the solution must therefore be to require such further research, rather than to invalidate the provisional measures themselves. The second relates to questions of evolving science, and the extent to which Article 5.7 can and ought to remain available as a safe harbour to Members even once a risk assessment has been carried out. It is argued that in some circumstances it should: where substantive inadequacies and limitations of the earlier risk assessment become apparent to policy makers, if new evidence comes to light, and where a previously unconsidered risk is identified. Under the current jurisprudence, it is not clear that Article 5.7 remains appropriately available in all such circumstances.
Carbon Trading in Commercial Aviation
Authors: Abeyratne Ruwantissa
Published: April 2022

The air transport product permeates national boundaries and therefore makes it impossible for one to localize aircraft engine emissions in terms of calculating the quantum of air pollution by an international flight over the territorial boundary of a nation State. To make matters more complicated, there has been no attempt so far by the international aviation community at reaching a global regulatory system by way of an international treaty that could bind nations of the world to a uniform set of rules applicable to financial instruments that would ensure an equitable and just ‘polluter pays’ system. The furthest we have come is the work carried out so far on emissions trading as a market-based option by the International Civil Aviation Organization (ICAO), which has been working, with a view to evaluating possible ways and means to achieve a global consensus. This article contains a discussion of carbon trading, its consequences, and the legal issues that have emerged as a result of unilateral action in the introduction of an emissions trading scheme. The discussions are presented against the backdrop of the work of ICAO.
The Cost of Transnational Accidents: Lessons from Bhopal and Amoco
Authors: Nicita Antonio
Published: April 2022

This article deals with the economic effects generated by different conflict rules on incentives of economic agents. In particular, we ascertain the rules currently in force at the domestic level, and subsequently analyze each of them from an economic standpoint. Namely, we focus our analysis on the following rules: the so-called lex loci delicti, the lex loci laesionis, the forum shopping and the forum non conveniens, the optio legis principle, and the rule of victim’s freedom of choice. We exploit these rules to explain some famous cases, that is, the accident that occurred at the Bhopal plant in 1984 and the oil spill involving the supertanker Amoco Cadiz.
EC Liability for Non-compliance with Decisions of the WTO DSB: The Lack of Judicial Protection Persists
Authors: Steinbach Armin
Published: April 2022

In the past, the European Court of Justice (ECJ) has strongly favoured not intervening in any way in the international process of dispute resolution and has denied the direct effect of World Trade Organization (WTO) law at the expense of judicial enforcement of WTO rules. This article discusses the Court’s recent extension of this well-established case law in the context of an action for compensation brought by companies subjected to retaliatory measures authorized by the Dispute Settlement Body (DSB). The analysis focuses on the Court’s interpretation of the binding nature of the Dispute Settlement Understanding (DSU) and the implications for the particular function an action for damages fulfils in the context of judicial protection under EC law. The Court’s approach to considering the notion of direct effect as a criterion for an action for damages is questioned in light of the Court’s own jurisprudence. The article concludes that the Court’s well-established stance vis-à-vis WTO rules should not be upheld for the purposes of a claim for damages.
The Role of the Chair in the WTO Negotiations from the Potsdam Collapse in June 2007 to July 2008
Authors: Ismail Faizel
Published: April 2022

This paper discusses two recent attempts to develop a theory to analyze the role of the chair in international negotiations and considers their validity to the World Trade Organization (WTO) negotiations. The focus of the study is on the WTO Agriculture and Non-Agricultural Market Access (NAMA) modalities negotiations after the G4 Potsdam collapse in June 2007 to the July 2008 G7 ministerial meetings. The analysis focuses on the role of the chair of NAMA in biasing the outcomes against the developing countries. The NAMA chair’s role is contrasted with that of the Agriculture chair’s more inclusive and bottom-up process. The paper offers some tentative proposals that could foster a more efficient and balanced outcome in future WTO negotiations.
The TRIPS Agreement and Its Effects on the R&D Spending of US-Owned Multinational Companies in Developing Countries
Authors: Ecer Sencer , Akers Darnita York
Published: April 2022

We test whether the strict intellectual property protection regulations required by the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement benefit developing countries, specifically by attracting private US research and development funds. We examine the level of country-specific research and development (R spending by foreign affiliates of US-owned multinational companies between 1989 and 2003 as a function of whether the country has adopted two of the major patent protection regulations required by TRIPS – patent protection for a duration of twenty years and patent protection for pharmaceuticals. Results from the regression analysis suggest that providing a patent protection duration of twenty years positively impacts the R&D spending while providing patent protection for pharmaceuticals does not impact it. As such, pharmaceutical patent protection should be enforced in a case-by-case manner, whereas twenty-year patent protection should be broadly undertaken.
For a New Classification System of Domestic Support in the WTO Agreement on Agriculture
Authors: Zahrnt Valentin
Published: April 2022

The Uruguay Round Agreement on Agriculture classifies domestic support to agriculture into three ‘boxes’: Amber, Blue, and Green. This legal distinction fails to smartly manage the trade-off between policy space to pursue domestic non-trade objectives and limiting trade distortions. The weak link between the box structure and economic analysis accentuates mercantilist bargaining and sends wrong signals to policy makers and domestic constituents. A more nuanced classification framework should be developed that is responsive to the degree of legitimacy different subsidies enjoy.
The Evolution of Dispute Settlement Provisions in Israel’s PTAs: Is There a Global Lesson?
Authors: Munin Nellie
Published: April 2022

In recent years, the number of regional and bilateral trade agreements (hereinafter preferential trade agreements (PTAs)) in the international arena has been growing steadily, amounting to some hundreds of agreements, according to World Trade Organization (WTO) data. These have developed alongside the WTO multilateral system, viewed as complementary to it in some aspects but as competing in other aspects. This article concentrates on one aspect or, rather, service offered by both systems: the dispute settlement mechanism. This article examines dispute settlement mechanisms offered by regional and bilateral free trade area agreements (FTAA) concluded by Israel in two past decades, presenting the evolutionary process these mechanisms have been through, inspired by the developments that occurred in the WTO dispute settlement mechanism at the end of the Uruguay Round. This article further analyses the differences refl ected in Israel’s agreements between the approaches of European trade partners and trade partners from the Americas. This article then draws a general lesson from this comparison as to the relationship between regional and multilateral dispute settlement mechanisms.
The EU-China Agreement on Maritime Transport
Authors: Noussia Kyriaki
Published: April 2022

For Europe, shipping has always been a key factor for its economic growth. The EU has a longstanding commitment to open and fair competition in shipping and also to quality shipping, hence its support for specialized international organizations and its strong and growing network of bilateral maritime agreements and dialogues with key shipping and trading partners, which purport to the maturing of its comprehensive strategic partnership with third states.

The maritime transport agreement of 2002 between the Commission, the Member States, and China and the various ongoing EU bilateral negotiations at regional level are good examples of such agreements, which – whether implicitly or explicitly characterized as mixed – bear features of mixity.
The Forgotten Role of WHO/IHR in Trade Responses to 2009 A/H1N1 Influenza Outbreak
Authors: Lin Tsai-Yu
Published: April 2022

How to deal with excessive trade measures as a result of an outbreak of disease is not purely a trade issue. Rather, dealing with these issues constitutes part of the global efforts to contain a threat to human health. The experience with the A/H1N1 influenza pandemic suggests that trade restrictions against countries facing diseases remains a constant threat to better global health governance in the context of the new International Health Regulations (IHR) just as it used to be under the old IHR. The missing role of the IHR in trade responses against A/H1N influenza has meant that the newly established mechanism does not effectively discourage the occurrence of excessive trade measures. In this regard, arguably, neither can the World Trade Organization (WTO) effectively deal with disputes involving the rapid spread of a virus. It is also argued that the IHR mechanism should be reinforced to strengthen Members’ compliance and to establish a tailor-made dispute settlement procedure to serve the purpose of discouraging excessive trade measures in the future.
Tax Discipline in the WTO
Authors: Hufbauer Gary Clyde
Published: April 2022

This article surveys instruments used by the GATT and the WTO to discourage tax discrimination in trade and investment between member countries, and to limit the use of tax preferences as a means of promoting exports. New agreements concluded, and leading cases decided during the long career of Jan Woznowski are highlighted.
Alternative Approach to Causation Analysis in Trade Remedy Investigations: ‘Cost of Production’ Test
Authors: Ahn Dukgeun , Moon William J.
Published: April 2022

Causation requirement in trade remedy investigations has produced significant controversy in terms of legal interpretation and economic analysis. Deficient treaty texts and confusing legal ruling have exacerbated practical difficulty for investigating authorities to ensure World Trade Organization (WTO) consistency. Various analytical models that were proposed on the basis of more articulated economics often turn out to be too complicated to apply in broader cases or critically contingent on data availability. We suggest an alternative approach that utilizes firm production costs to complement the previous models.
The European Commission’s Practice on Exporters Found Not to Dump in the Aftermath of WTO Mexico Rice
Authors: Dascalescu Florin Dorian
Published: April 2022

The WTO Panel has found in Mexico Rice that, as set forth by Article 5.8 of the Anti-Dumping Agreement, there shall be ‘immediate termination’ of an anti-dumping investigation where the authorities determine that the dumping margin of individual exporters is de minimis. The only way to ‘immediately’ terminate an investigation of such exporters is to exclude them from the scope of the anti-dumping order. In addition to the Panel’s holding in Mexico Rice, the legal doctrine supports the Panel’s logical conclusion that an exporter found not to dump in the original investigation cannot be subject to a ‘changed circumstances’ (or ‘interim’) review. Indeed, reviewing such exporters would actually result in them being subject to the initial anti-dumping order. However, at EU level, the anti-dumping legislation provides that there shall be ‘immediate termination’ where it is determined that the dumping margin is de minimis, provided that it is only the ‘investigation’ that shall be terminated, while exporters found not to dump remain subject to the ‘proceeding’ and may be ‘automatically’ reinvestigated in ‘any subsequent review’ with respect to the country concerned. Consequently, it appears that the EU anti-dumping legislation is contrary to the WTO case law. This conclusion is supported by the Commission’s findings in Welded Tubes (December 2008), in which the Commission seemed to accept the rationale behind Mexico Rice. However, the Commission’s interpretation of the Mexico Rice decision in Ironing Boards (October 2009) generates contradictory results, as it opens the gate to the initiation of new anti-dumping investigations limited to exporters found not to dump, while the initial anti-dumping measures are still in force.

The present article examines the Commission’s approach in Welded Tubes and scrutinizes whether initiating the Ironing Boards case was indeed in accordance with the Panel’s decision in Mexico Rice.
The ‘Specificity’ of Cultural Products versus the ‘Generality’ of Trade Obligations: Reflecting on ‘China – Publications and Audiovisual Products’
Authors: Chen Weidong , Shi Jingxia
Published: April 2022

Cultural products present themselves dually, as both commercial objects and assets that convey values and identity. The recently decided WTO case of China – Publications and Audiovisual Products provides an opportunity to examine the interface between the ‘specificity’ of cultural products and the ‘generality’ of trade obligations. Based on the DSB reports, this comment centres its analysis on four key issues: the UNESCO Convention as cultural defence, the application of the ‘public morals exception’ to cultural products, the distinction and overlap between cultural goods and services, and the degree to which culture can determine the ‘likeness’ between imported and domestic cultural products. This comment concludes with remarks on the case decisions, lessons China might have learned, and the necessity of reconciling free trade with cultural diversity in the context of economic globalization.

The flame knows no rest, for it lives in perpetual conflict between two opposite tendencies. On the one hand, it cleaves to its wick, drinking thirstily of the oil that fuels its existence. At the same time, it surges upward, seeking to tear free of its material tether.

– Yanki Tauber, Beyond the Letter of the Law
The Role of WTO Rules to Discipline Climate Change-Related Agriculture Policies
Authors: Dantas Adriana
Published: April 2022

As countries around the globe introduce new strategies to address the effects of climate change on the agriculture sector, greater international coordination and discipline of these policies are increasingly important. Policies to boost renewable energy from agriculture feedstocks, for example, are widespread in the United States and the European Union (EU), despite the uncertainties concerning their impacts on commodity demand, trade flows, water use, and mitigation of greenhouse gas emissions.

This article argues that there is a relationship between market-distorting farm policies and the respective level of environmental impact. This is particularly true in the case of policies that are not decoupled from production. Because the problems involving agriculture production and trade are global and systemic in nature, WTO rules play an important role in securing that new forms of agriculture protectionism, justified by legitimate policy objectives, such as climate change mitigation and adaptation, do not jeopardize agriculture trade liberalization.
Chinas First Loss
Authors: Choi Won-Mog , Bhala Raj
Published: April 2022

The China Auto Parts case is a historic one set in the broad context of the political economy and hard-line development policies of China. Through this case, trade policy makers in Beijing learned the lesson of the golden rule of international trade law, which is helping the Chinese Communist Party overcome domestic interest group pressure and get on with the job of reform. China could also learn that World Trade Organization (WTO) dispute settlement provides a good channel through which trade disputes among superpower countries could be solved with efficacy and alacrity. A shift toward consistent non-discriminatory behaviour will help one of the fastest-growing developing countries emerge into a responsible stakeholder on the world economic stage.
Cast Light and Evil Will Go Away: The Transparency Mechanism for Regulating Regional Trade Agreements Three Years After
Authors: Lim C.L. , Crawford Jo-Ann
Published: April 2022

Our aim is to test the idea that the World Trade Organization's (WTO's) ability to regulate regional trade agreements (RTAs) is likely to decline with the proliferation of RTAs worldwide. According to this idea, (1) 'people who live in glass houses should not throw stones'; (2) with the proliferation of RTAs, WTO members are likely to place their interests before the interests of the multilateral system; and (3) there would be fewer WTO members demanding stricter disciplines for RTA regulation. However, our finding is that WTO members have at least continued to accord attention to the problems associated with RTA proliferation, and they continue to engage in active scrutiny of individual RTAs. We are not saying that WTO members do not act in their own interest or that they are motivated by altruism but simply that such self-interest has not prevented scrutiny of RTAs under the new transparency mechanism (TM). The proliferation of RTAs (and any felt need to protect one's 'own RTA programme') has not prevented discussion on improved disciplines. Notwithstanding the intent underlying the establishment of the TM - that is, the prevention of another impasse caused by controversy over various 'systemic issues' connected with questions of RTA compliance - WTO members continue to discuss these issues in ways that demonstrate fidelity to important questions of principle and policy. One notable development, however, has been that East Asian members are no longer seen to be as prominent in expressing a strict approach towards RTA regulation as they were a decade ago.
Analysis of Anti-dumping Use in Free Trade Agreements
Authors: Shin Wonkyu , Ahn Dukgeun
Published: April 2022

Proliferating free trade agreements (FTAs) in recent years may have conflicting effects on anti-dumping (AD) uses among FTA parties. On the one hand, an FTA may increase a country's AD activities to protect its domestic industries from the increased import flows from other parties. On the other hand, an FTA supposedly helps reduce the use of AD measures to accomplish the purpose of free trade. Which effects prevail can shed important lights on the question of whether an FTA can be a stumbling block or a building block.

This article examines the effects of FTAs on AD activities based on comprehensive empirical analysis. Using longitudinal data of major AD user countries from 1995 to 2009, we found that there is clearly an inverse relationship between an FTA and AD activities. This finding represents the user's tendency to trigger less AD filings against FTA membership, regardless of facing more imports from FTA partners. This article also captured dynamic FTA effects based on a series of distribution of time dummies. The estimation results from the dynamic model show that the FTA enactment year clearly has significant effect, suggesting substantial reduction of AD investigations in that year.
Checking RTA Compatibility with Global Trade Rules: WTO Litigation Practice and Implications from the Transparency Mechanism for RTAs
Authors: Shadikhodjaev Sherzod
Published: April 2022

With the adoption of a new transparency mechanism for Regional Trade Agreements (RTAs) highlighting a crucial shift from 'examination' of RTAs to their 'consideration', the World Trade Organization (WTO) dispute settlement mechanism remains the only available channel for checking RTA consistency. In practice, however, the WTO adjudicatory bodies have been reluctant to deal with this issue. This may be explained with the (1) complexity of the WTO compatibility test and (2) the lack of clarity in the WTO substantive provisions concerning regional trade. The first hurdle could be overcome with the panel's approach in US - Line Pipe supplemented by an in-depth analysis of only problematic aspects of the RTA identified by the complainant. As for the second constraint, WTO members should put more effort to complete the pending work on the clarification of 'systemic issues' or, failing that, use their exclusive power to adopt authoritative interpretations or encourage the dispute settlement bodies to fully utilize their interpretative authority under the Dispute Settlement Understanding (DSU). In addition to the 'consideration' approach, the links between notification and litigation and between the Secretariat's factual presentations and dispute settlement also have some legal implications for WTO litigation involving RTA issues.
Protectionism and Global Recession: Has the Link Been Broken?
Authors: Viju-Miljusevic Crina
Published: April 2022

With the sharp contraction of economic activity in the wake of the global financial crisis that started in 2007, many have worried that governments around the world would resort to protectionism in a desperate attempt to mitigate the effects of the recession on their domestic economies. However, the World Trade Organization (WTO)'s 2009 assessment suggests that new protectionist measures affect a maximum of 1% of world trade in goods and services, while between November 2009 and May 2010, only 0.4% of trade was impacted by additional import restricting measures. In this article, we assess the importance of trade policy in crisis management and resolution by presenting case studies on past financial and economic crises and we investigate the main reasons for the absence of protectionism in the wake of the latest financial crisis.
Preferential Tariff Formation: The Case of the European Union
Authors: Joshi Vivek
Published: April 2022

In this paper, we address the impact of Multilateral Trade Liberalization (MTL) on the preferential tariffs granted by the European Union (EU), which is one of the largest traders and one of the biggest contributors to MTL. We empirically address two important questions. First, if the Most Favoured Nation (MFN) tariff for a product is higher, does it lead to a higher or lower preferential tariff? Second, with the EU being a large trading partner in such agreements, does reciprocity matter for giving meaningful preferential access? For a given MFN tariff, we model the preferential tariff with a simple linear functional form. We draw three important conclusions. First, the products that are highly protected do not get high preferential access even at the regional level. Second, reciprocity plays only a limited role in granting better preferential access. Third, the generalized system of preference (GSP) preferences matters when the EU negotiates with the developed partners, but it does not matter when it negotiates with the developing partners.
Do Developed Countries Lawyer up Faster than Developing Countries? Evaluating the Speed and Momentum of Trade Litigation at the World Trade Organization
Authors: Froese Marc D.
Published: April 2022

Recent scholarship raises a number of questions about how countries at different income levels use the World Trade Organization's (WTO's) Dispute Settlement Understanding (DSU). It is generally accepted that countries with large trade volumes will use the DSU more than smaller economies. It stands to reason that developed countries would also be faster to participate in dispute settlement processes after acceding to the WTO Agreement. This article shows that economic development status does not explain the speed at which members engage in dispute settlement following accession. In fact, there is less uniformity in the pace at which members undertake dispute settlement than might be expected given the global divisions of wealth, access to information and availability of legal talent.
Third Country Dumping: Origin, Evolution and Prospect
Authors: Ahn Dukgeun
Published: April 2022

Third country anti-dumping actions were envisioned at the very inception of the General Agreement on Tariffs and Trade (GATT) and yet almost completely neglected by most governments throughout the GATT/World Trade Organization (WTO) history. The requirement for prior approval by multilateral trade institutions became a formidable procedural obstacle for any country seeking third country anti-dumping duty (AD) actions. Despite such difficulties, there were only few attempts to effectively employ such actions and several legal arrangements to refine the rules for third country AD actions. This article investigates the origin and historical development concerning third country AD actions and examines their implications for the current WTO system that is congested with numerous Free Trade Agreements (FTAs).
Parallel Imports and Unparallel Laws: Does the WTO Need to Harmonize the Parallel Import Law?
Authors: Rai Rajnish Kumar
Published: April 2022

Parallel imports, one of the most complex and confusing phenomena of international trade, are a natural consequence of the doctrine of exhaustion. There exists a considerable divergence among the scholars regarding the need for harmonization of the 'principle of exhaustion' and parallel import laws. In this paper, we critically examine the need for harmonization of parallel import laws by analysing the economic considerations and consumer welfare aspects of different systems of exhaustion of rights. We also present the available sparse empirical evidence pertaining to the same. Prima facie the arguments for a minimum international legal standard of exhaustion doctrine in the TRIPS Agreement appear convincing. However, there is a lack of corroborative empirical evidence. Therefore, this may not be an appropriate time for the WTO to move ahead on this contentious issue, especially when it is standing at crossroads on several other major issues.
The WTO-WCO: A Model of Judicial Institutional Cooperation?
Authors: Foltea Marina
Published: April 2022

The examination of the relationship of WTO and other international organizations (IOs) has been mostly seen through prism of fragmentation of international law and institutions. This is fully understandable given that different IOs have received uneven treatment at the WTO, including in dispute settlement. This is a sign of an inconsistent and fragmented landscape of international legal order with different IOs playing differently defined roles, even within the narrow field of WTO dispute settlement. While many remedies have been offered to cure the problem, this article examines institutional fragmentation by using the example of interaction between the WTO and WCO. While the cooperation between the WTO and WCO has been quite prolific, the central question addressed in this article is to what extent this cooperation model can serve as reference for the WTO judiciary in shaping its interactions with other IOs and what would be the factors for such assessment.
Paths to Carbon Stabilization: How Foreign Carbon-Restricting Reforms Will Affect US Industry, Climate Policy and the Prospects of a Binding Emission Reduction Treaty
Authors: Colares Juscelino F.
Published: April 2022

'If factors of production are thought of as rights, it becomes easier to understand that the right to do something which has a harmful effect . . . is also a factor of production.'

This article investigates new paths for achieving a binding treaty on emission stabilization. Because industry support for US participation in such an agreement is essential, an empirical analysis of lobbying expenditures during Congress's last attempt to pass emission-restricting legislation is used to gauge industry support and opposition for such reform. The article qualifies its finding of no major spending asymmetry and explains the role of ideological and structural features of the US political system in impeding the passage of any such bill. Scepticism aside, it argues that a shift in US climate policy is coming due to: (i) the implementation of foreign carbon-restricting regimes; and (ii) the US exporters' response to these reforms .A microeconomic analysis demonstrates that US exporters will increasingly elect carbon-efficient technologies to minimize costs and adjust to a changing regulatory environment. This shift in the carbon intensity of production will cause these industries to form a majority coalition with pro-environment groups in favour of domestic and global emission-restricting reforms. Because these developments lead to the use of border measures designed to curb carbon leakage and address trade concerns, the article makes a few suggestions for reducing potential conflicts between the trade and climate change regimes. (JEL:D 21, K 32, K 33)