bluuebunny/crossref_metadata_2025 huggingface dataset:
The New Politics of Time
Authors: Rose Emily
Published: April 2022

New forms of temporal contestation are taking place in the world of work. UK employers are requiring from workers heightened levels of availability and responsiveness to work, as and when needed. These demands are playing out differently in different parts of the labour market. The overall effect, though, is an inhibiting of workers’ ability to enjoy time free from work. Current regulation of work and working time that aims to limit or ensure compensation for this time do not adequately address the problem. The article presents an in-depth sociological analysis of these temporal work patterns. This enables an evaluation of the conceptual shifts required to the categories of work and working time in order than they may encompass these new temporal trends. It is concluded that an alternative approach that specifically focuses on preventing new extreme forms of flexibility is a better strategy to ensure a fairer outcome for workers
Carrying Little Sticks: Is There a Deterrence Gap in Employment Standards Enforcement in Ontario, Canada?
Authors: Tucker Eric , Noack Andrea M. , Casey Rebecca , Vosko Leah F. , Thomas Mark , Grundy John
Published: April 2022

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.
I Lost My Job over a Facebook Post: Was that Fair? Discipline and Dismissal for Social Media Activity
Authors: Mantouvalou Virginia
Published: April 2022

Is it fair to be dismissed for social media activity, and are there any limitations to the employer’s managerial prerogative? These are the questions that this article addresses by examining the compatibility of discipline or dismissal with human rights law, with a primary focus on United Kingdom (UK) and European human rights law. It argues that UK courts and tribunals erroneously accept the lawfulness of such dismissals most of the time. This is due both to weaknesses in the English law of unfair dismissal, and to courts’ and tribunals’ limited engagement with human rights at work. Technical aspects of social media usage, with which courts and tribunals are often unfamiliar, add a further layer of complexity. Two factors make dismissals for social media activity particularly challenging for courts: first, the fact that social media are online platforms that everyone can potentially access, and hence public rather than private space; second, that expression on social media, often spontaneous and thoughtless, is not viewed as a particularly valuable form of speech. The argument of the article is that both the right to private life and the right to free speech are implicated in dismissals for social media activity, and that they should be viewed as lawful in very limited occasions, for employers should not have the right to censor the moral, political and other views and preferences of their employees even if it causes business harm.
Revisiting Social Reproduction: Migrant Care Workers and Their Entitlements in Canada
Authors: Routh Supriya
Published: April 2022

In this article, I question the temporary/permanent divide insofar as migrant care workers’ legal entitlements are concerned with reference to the Canadian Caregiver Program, which is characterized as one of the best temporary migrant worker programs globally. I problematize the temporary/permanent distinction by critiquing the private market exchange-based relationship on the basis of which the Program is legally formulated. I argue that any caregiver program should see caregivers – irrespective of their national or foreign origin – as fully contributory members of society and thereby entitled to an extensive range of citizenship rights and entitlements. While this proposal is not completely novel, what I offer through this article is a regulatory justification for migrant caregivers’ claim to full socio-economic citizenship rights and entitlements. I develop this justification by drawing on – and reconceptualizing – the economic productivity-focused social reproduction perspective. In this article, then, I make two points: first, I propose a theoretical reconceptualization of socially reproductive work and, second, by evaluating migrant care workers’ status in Canada, I argue that on the basis of social reciprocity, caregivers cannot be considered temporary insofar as their entitlements are concerned.
Two Sides of One Coin: The US-Guatemala Arbitration and the Dual Structure of Labour Provisions in the CPTPP
Authors: Namgoong June
Published: April 2022

This article revisits and critically analyses the panel’s decision and reasoning in the dispute between the United States and Guatemala under the labour provisions of the Dominican Republic–Central America Free Trade Agreement vis-à-vis the treaty interpretation rules under the Vienna Convention on the Law of Treaties. It further seeks to draw implications for the construction of labour provisions of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The article sheds light on the normative and theoretical rationales that underlie tradelabour linkages in general, and the labour provisions under such free trade agreements in particular. Ultimately, the paper makes a case for the dual structure of conditionality-based labour provisions, a legal characteristic that demands that each of them pursue two different goals, first, protecting labour rights as human rights (social goal) and second, securing the condition of fair competition in trade/ investment and preventing a race to the bottom in labour regulation (economic goal). With this proposal, it attempts to put the long-overlooked, deontologically normative value that labour provisions pursue in its right place without prejudice to their role of levelling the playing field.
Towards Corporate Health Responsibility? An Analysis of Workplace Health Promotion Through the Prism of CSR and Transnational New Governance
Authors: Olsen Céline Brassart
Published: April 2022

In 2018, the Global Reporting Initiative (GRI) adopted a new standard, requiring companies to report on their initiatives for the promotion of workers’ health. These initiatives range from the provision of smoking cessation programmes to free health screenings in the workplace, going beyond ‘traditional’ occupational health and safety (OHS) requirements. The new standard is the first transnational instrument to specify express requirements for employers in workplace health promotion. It provides an interesting example of transnational new governance, whereby private actors adopt voluntary norms to regulate business in areas traditionally pertaining to public regulators (here, public health). This article analyses the extent to which private actors have acted as norm entrepreneurs in workplace health promotion, and whether the new standard could mark the emergence of ‘corporate health responsibility’ in the workplace. The article starts by analysing existing intergovernmental instruments in workplace health promotion. After highlighting a regulatory gap in traditional governance, the article examines the contribution of private regulators in workplace health promotion. To this end, it analyses the new standard, as well as the recent reporting practice of transnational corporations (TNCs) in workplace health promotion. Although the new standard is a welcome private, regulatory initiative, it also illustrates the orchestration deficit often found in transnational new governance. The article concludes that the road to ‘corporate health responsibility’ is likely to be a long one.

Corporate Social Responsibility, Global Health, Global Reporting Initiative (GRI), Transnational New Governance, Occupational Health And Safety, Standards, Workers’ Health, Workplace Health Promotion
Collective Bargaining for Working Parents in Sweden and Its Interaction with the Statutory Benefit System
Authors: Votinius Jenny Julén
Published: April 2022

In recent decades, the use of collectively bargained payments to cover parental leave has become increasingly important in Sweden. As part of a general trend, supplementary payments from collectively bargained schemes for risks covered by the social security system have taken on a major role. In the literature, this development has been partly explained by an overall decline in the Swedish welfare state, starting in the early 1990s. This article explores the interaction between collectively bargained provisions on supplements for working parents in Sweden, and their interaction with the statutory system of parental leave benefits. The long-standing emphasis on work-life balance in Swedish public policy is well known, but the significance of collective bargaining and the involvement of the social partners in this area has received less attention. Starting from national legislation and policies on work-family reconciliation, this article explores a number of effects of the collectively bargained supplements: with respect to the interests that come into play, with respect to the finances of working parents, and with respect to gender equality and the division of parental leave between men and women. It is argued that one effect of a development in which collective bargaining provides for an increasing share of income during parental leave is that key public policy ideas on the design of parental leave regulation are tweaked to the benefit of other ideas promoted by the social partners. Moreover, as access to collectively bargained supplements is not the same for all employees, another effect is that the supplements come into conflict with the principle of universality that underpins the social security system. A third effect, however, is that collectively bargained supplements provide an important but not widely recognized incentive for parents to move away from a gendered division of parental leave.

Parental Rights, Parental Leave, Industrial Relations, Occupational Parental Leave Benefit, Sweden, Interaction Between Labour Legislation And Collective Bargaining
Effective Representation: Whereto for Workers on Fruit and Wine Farms in South Africa?
Authors: Fergus Emma , Godfrey Shane
Published: April 2022

This article draws on empirical research that reveals the role played by farmworkers’ committees in the fruit and wine farming sectors in the Western Cape of South Africa, where trade union density is extremely low. It examines the legitimacy of these committees as a form of worker representation, with reference to relevant domestic labour legislation, common law, International Labour Organization (ILO) instruments and key private social codes, including the international Fairtrade Standard for Hired Labour. In the process, the relationship between the public and private governance instruments in the sector is considered. Farmworkers’ committees are found to fall through a regulatory gap between the different governance systems, highlighting their lack of integration and legal recognition. This is notwithstanding their potential to fill the representation gap which exists for many workers on farms. The article concludes by proposing a new approach to regulating these committees, primarily with a view to promoting more effective but still legitimate organizing and collective bargaining for all farmworkers, in the absence of representative trade unions.

Freedom of Association, Collective Bargaining, Representation Gap, Low Union Density, Good Practice Farms, Western Cape Farmworkers, Fairtrade Standard for Hired Labour, South Africa
Negotiating Compliance When Employment Law Is Ambitious: The Case of the Duty to Employ after Maternity Leave
Authors: Mundlak Guy , Lyabock Inbar Borenshtein
Published: April 2022

A simple discussion of compliance suggests that organizations either comply with or disobey the prescript of the legal norm, on the basis of a cost-benefit calculation. The literature on compliance has already demonstrated that this simple model of compliance does not fully capture the gamut of incentives for compliance, or the continuum of behaviours that ranges from defiance to compliance. Drawing on a case study of an Israeli legal norm that requires employers to reinstate workers after postpartum parental leave for sixty days, we seek to further unpack the notion of compliance along two axes. First, the duty to reinstate is ‘ambitious’ because it seeks to affect managerial bias and educate for virtue within organizations. Second, the study of compliance must open the fictitious black box of organizations, and reveal internal negotiations over the extent and form of compliance. Based on a qualitative study, we demonstrate that even a seemingly strict norm is applied and perceived differently, between and within the same organization. Findings identify the strengths as well as the shortcomings of the legal ambition to induce an educational experience in organizations.

Labour Law, Compliance, Enforcement, Parental Leave, Organizational Theory
Filling the Void? A Critical Analysis of Competition Regulation of Collective Bargaining Amongst Non-employees
Authors: McCrystal Shae , Hardy Tess
Published: April 2022

The rise of the gig economy, and the expansion of self-employment more generally, have magnified pre-existing concerns about how to address the risk of exploitation of non-employees, including franchisees, freelance journalists and owner-driver transport workers, amongst others. In a bid to fill relevant regulatory gaps, and correct destructive power imbalances, many are turning their attention to the power and potential of collective bargaining.

At the same time, there is growing appreciation of how competition prohibitions against price-fixing may curb workers’ capacity to organize for decent wages and working conditions. There has been much discussion and debate about the need to expand existing labour exemptions from competition law in order to allow gig workers, and other vulnerable categories of selfemployed workers, to engage in lawful collective bargaining. Rather than fixating on questions of misclassification, however, this article considers a novel proposal emanating from the sphere of competition regulation in Australia.

After extensive consultation and prolonged Parliamentary debate, the Australian Competition and Consumer Commission (ACCC) has adopted a class exemption which provides a broad legal immunity to eligible small businesses, including self-employed workers, wishing to engage in collective bargaining. The ACCC’s Determination to extend collective bargaining rights to small businesses – with effect from 3 June 2021 – represents a highly progressive approach and one worthy of greater attention and deeper analysis.

To assess the regulatory value of this unique approach, we draw upon the International Labour Organization (ILO) standards relating to collective bargaining and freedom of association. In doing so, we critically assess the extent to which the ACCC’s approach offers a potential solution to resolving the tension between labour law and competition law when it comes to the regulation of self-employed workers. Somewhat surprisingly, we find that the class exemption largely complies with relevant ILO principles, despite the fact that it does little in terms of actively promoting or encouraging effective collective bargaining. For example, in line with ILO conceptions of voluntariness, the class exemption places virtually no restrictions on the scope, level or subject matter of the bargaining.

Ultimately, however, we argue that if collective bargaining is to have any chance of filling the regulatory void which exists between labour law and competition law, it is critical that basic structures and supports are in place to facilitate meaningful bargaining: where collective activity is supported by trade union autonomy and the right to engage in strikes in support of bargaining demands and concluded agreements.

Mercosur, Socio-Labour Declaration, Argentina, Brazil, Uruguay, Paraguay, Venezuela, Regional Integration, Labour Rights, Regional Trade Blocs, Latin America, Global South
State Aid and European Union Transport: A Reflection on Law, Policy and Practice
Authors: Bovis Christopher
Published: April 2022

In this article the author provides a dissected analysis of the application of state aid acquis and jurisprudence to the transport sectors in the European Union. The purpose of this article is threefold. First, an attempt will be made to position the concept of public service obligations and the notion of operating aid within the framework of state aid as applied to the transport sectors. The result of this attempt will codify the approach of European institutions, reveal the themes emerging from jurisprudential inferences and assess their significance for the future application of state aid to transport. Second, an analysis of the practice and lex judicata of operating aid will reflect on the interplay between the liberalization of the transport sectors in the Community and its impact on state aid application. Finally, by reference to the relevant acquis the author will provide insights of the function of the application of state aid in transport within the broader framework of anti-trust in the common market.
Towards Sounder and Fairer WTO Retaliation: Suggestions for Possible Additional Procedural Rules Governing Members’ Preparation and Adoption of Retaliatory Measures
Authors: Malacrida Reto
Published: April 2022

Since 1995, World Trade Organization (WTO) Members have authorized trade retaliation (countermeasures) in six disputes, and retaliatory measures have been imposed in four of these six disputes. Thus, retaliation no longer is a mere worst-case scenario of WTO dispute settlement. This article suggests that, given this, there would be merit in elaborating further procedural rules governing Members’ preparation and adoption of retaliatory measures. In an effort to flesh out this idea, possible amendments to the WTO Dispute Settlement Understanding are suggested which would introduce a requirement that Members conduct a domestic notice-and-comment procedure before adopting a retaliatory measure to be submitted to the WTO for authorization.
Developing Countries and Enforcement of Trade Agreements: Why Dispute Settlement is Not Enough
Authors: Bown Chad P.
Published: April 2022

Poor countries are rarely challenged in formal World Trade Ogranization (WTO) trade disputes for failing to live up to commitments, reducing the benefits of their participation in international trade agreements. This article examines the political-economic causes of the failure to challenge poor countries and discusses the static and dynamic costs and externality implications of this failure. Given the weak incentives to enforce WTO rules and disciplines against small and poor Members, bolstering the transparency function of the WTO is important to make trade agreements more relevant to trade constituencies in developing countries. While our focus is on the WTO system, our arguments also apply to reciprocal North–South trade agreements.
Reforms in FDI Policy and the Investment Climate in Vietnam
Authors: Quang Tran Tien
Published: April 2022

This article surveys the evolution of foreign direct investment policy since the initiation of renovation reforms (Doi moi) in 1987 and current state of the policy regime. It is shown that following a period of slow progress of over a decade, the reform processed gained momentum in the aftermaths of the Asian fi nancial crisis(1997–1998) and accelerated in the course of the WTO accession process. Reforms over the past five years have virtually eliminated ownership restrictions and streamlined procedures for business entry and operation, ensuring a level playing field for business ventures of all ownership types. However, there are still various institutional constraints and infrastructure bottlenecks that need to be redressed in order to improve Vietnam’s ranking among the dynamic East Asian economies as an attractive location for foreign investment.
International Trade for Development:The WTO as a Development Institution?
Authors: Qureshi Asif H.
Published: April 2022

This article explores the development dimension of international trade through a focus on the institutional character of the World Trade Organization (WTO). In particular it challenges the assumptions upon which the assertion that the WTO is not a development institution has been made. This analysis is developed through a focus on the underlying logic and legal basis of the assertion that the WTO is not a development institution.
Efficient Breach, Reliance and Contract Remedies at the WTO
Authors: Collins David
Published: April 2022

Recent attempts by scholars to apply the doctrine of efficient breach to the remedial system of the World Trade Organization (WTO) in order to maximize the joint welfare of trading parties suffer from two principle shortcomings – the difficulty of calibrating an appropriate remedy based on foregone trade and the reality that those truly injured by breach are the private third party exporters, not the contracting Member States. This article therefore proposes a remedy for WTO agreement violations consisting of monetary damages assessed at the reliance measure of common law contract. Breaching WTO Members will compensate exporters in the injured state in an amount commensurate with their expenditures undertaken in anticipation of liberalized trade, obviating the need for an estimated counterfactual and structuring reparation according to actual individual losses rather than on an aggregate state level. In addition to encouraging efficient breach, this method of setting damages has precedent in international law which should foster compliance, is aligned with the tort–like nature of WTO violations and serves an evidentiary purpose that is reflected in the common law’s concept of vesting of third–party rights.
Impact of the GATS on Basic Social Services Redux
Authors: Kulkarni Parashar
Published: April 2022

This article attempts to consolidate research on the General Agreement on Trade in Services (GATS) and basic social services, and analyzes the impact of the GATS on the provision of basic social services in developing countries. The article suggests that the general obligations of the GATS are expected to have a marginally beneficial impact on the provision of basic social services, to the extent they are implemented and integrated with the domestic reform agenda. This benefit is expected due to an increase in transparency and public availability of information. Second, making specific commitments in basic social services is likely to be marginally harmful, to the extent that Member countries lack regulatory capacity. This negative impact is expected due to restrictions on policy space. Third, scheduling basic social services under the GATS is quite de–linked from both – the problems faced in improving provision of basic social services, and the solutions that are suggested to address them. Finally, for a more complete picture of how the GATS may impact basic social services, there is need to look elsewhere, into the schedules of other sectors such as insurance and financial services, since poorly executed commitments can hamper policy space to introduce interventions in these allied sectors that affect the provision of basic social services.
The Positive Consequences of Non–tariff Barriers
Authors: Pinto de Andrade Rafael Leite
Published: April 2022

The new world requirements for a more comprehensive and effective normalization, traceability and inspection of goods for export give rise to changes in production policies. This article is based on the assumption that the efforts by countries and/or companies to overcome non–tariff barriers, established in the guise of norms, standards, or regulations, bring tangible and intangible benefits to society as a whole. This study will lead to the conclusion that there is a close relation between trends in favour of overcoming non–tariff barriers and benefits, to date scarcely explored in debates. Benefits were detected in connection with technological developments, the environment, domestic legislation, combined efforts by trading blocks, managerial innovations, reduced competition, maintenance of competitive advantages and labour relations.
Japan’s First CVDs Determination: With Particular Emphasis on the Issue of Direction and Entrustment
Authors: Cho In Yeung J.
Published: April 2022

The purpose of this note is to survey the countervailing duties (CVDs) determination of the Japanese investigating authorities (JIAs) vis–à–vis the Korean government and Hynix Co., Ltd, one of the world’s largest semiconductor producers based in Korea, with a specific focus on the element of ‘direction and entrustment’. The survey would be worthwhile in that the determination marks Japan’s first ever CVD. In addition, the issue of ‘direction and entrustment’ is an increasingly sensitive one in the context of trade remedy investigation in that governments may resort to ‘direction and entrustment’ to circumvent their international obligations by using private proxies to take actions that would otherwise be imputable to them. Towards the stated end, the note will examine the pertinent legal framework and jurisprudence, followed by an analysis of factual elements of the JIA determination. The note will conclude with subsequent legal developments and a discussion on policy implications for the Republic of Korea.
The Building Block versus Stumbling Block Debate of Regionalism: From the Perspective of Service Trade Liberalization in Asia
Authors: Hamanaka Shintaro
Published: April 2022

When debating the pros and cons of economic regionalism, have we focused more on trade in goods at the expense of services? This article argues that regionalism is certainly a building block not a stumbling block to a multilateral trading system, using the service liberalization scheme of the Association of Southeast Asian Nations (ASEAN) as a case study. At the same time, it is critical to set out a proper institutional arrangement to ensure that regional service liberalization initiatives reinforce the global service regime. This article proposes an amendment of the current Article V of the General Agreements on Trade in Services (GATS) to define the appropriate relationship between multilateralism and regionalism in the context of services.
Regulatory Autonomy in the EU and WTO: Defining and Defending Its Limits
Authors: Reid Emily
Published: April 2022

Tension between the pursuit of trade liberalization and the protection and exercise of national regulatory autonomy is an issue that has arisen in both the European Union (EU) and the World Trade Organization (WTO). While both legal orders provide for exceptions to the fundamental rules concerning free movement and access to markets, the interpretation and application of these exceptions represent a challenge. The fundamental question is how to distinguish between unlawful barriers to trade and legitimate national regulation. This paper presents an analysis of the approaches applied to this question by the EU and WTO, in the areas of free movement of goods and services, from a comparative perspective. It explores, in particular, the implications of the market access – non-discrimination dichotomy, and focuses upon the role of ‘proportionality’ review in each legal order.
WTO and PTAs: A Preference for Multilateralism? (or, the Dog That Tried to Stop the Bus)
Authors: Mavroidis Petros C.
Published: April 2022

This article deals with preferential trade agreements (PTAs) coming under the aegis of the General Agreement on Tariffs and Trade (GATT; trade in goods where one party is not a developing country). The argument advanced here is that, as things stand, in the absence of theory explaining the rationale for PTAs, it is probably wiser from a policy perspective to concentrate on the multilateral agenda and avoid tackling this issue head on.
International Law of Economic Migration: A Ménage à Trois? GATS Mode 4, EPAs, and Bilateral Migration Agreements
Authors: Panizzon Marion
Published: April 2022

International economic migration is steered internationally by the interplay of migration-related agreements at three levels: the multilateral opening of services markets for natural persons in the so-called ‘mode 4’ of the WTO General Agreement on Trade in Services, the preferential trade agreements, which replicate the GATS modalities at regional or cross continental levels and the non-trade, bilateral migration agreements concluded in a securitarian context. This fragmentation in terms of hierarchical norm allocation is further exacerbated by a split running horizontally or thematically through trade and non-trade agreements in terms of occupational skill levels. Whereas bilateral, non-trade agreements correct the high-skill bias of unilateral immigration law and the multilateral regime for liberalizing the movement of natural persons in WTO/GATS, the economic partnership agreements (EPA), for their part, combine openings for the highly-skilled with access for lower-skilled professions. In the final analysis, the most-favored-nation clause (MFN) of the WTO/GATS functions to de-fragment the incoherent landscape of agreements pertaining to economic migration. Insofar, as the MFNclause of WTO/GATS requires multilateralizing market openings, it disciplines the preferential recruitment schemes based on nationality characteristic for bilateral migration agreements. In so doing, the MFN clause takes pressure off the classic corridors of migration and thus contributes to distributing the burdens of receiving migrant workers more evenly among the WTO Membership.
Trade Facilitation: A Conceptual Review
Authors: Grainger Andrew
Published: April 2022

With falling tariff levels, it is probably not surprising that the non-tariff area and trade facilitation, in particular, are receiving growing attention. Apart from the World Trade Organization (WTO), trade facilitation is a subject of substance within a wide range of international organizations including several United Nations (UN)-type bodies, the World Customs Organization (WCO) as well as those concerned with economic development, supply chain security, and sector-specific issues such as international transport and logistics. The resulting body of international trade facilitation instruments and initiatives, which include conventions as well as detailed technical recommendations, is extensive. This article provides a general review of key elements and topics that are associated with trade facilitation and sets them against underlying challenges and obstacles in practice as well as for research. While much of the current effort in trade facilitation begins with a top-down premise – whereby governments seek to implement international conventions and recommendations nationally – the author argues that trade facilitation is inherently an operations-focused topic and deserves to be approached from a bottom-up approach, too. Such approach not only provides a strong case for an interdisciplinary research agenda, it also brings into question whether current institutions concerned with trade facilitation have the necessary capabilities to apply themselves to the more operational aspects associated with international trade.
Export Restrictions and the WTO Law: How to Reform the Regulatory Deficiency
Authors: Karapinar Baris
Published: April 2022

Trade barriers in the form of export restrictions imposed on various food products and natural resources have been subject to extensive public attention. A notable illustration of the growing importance of export restrictions was the establishment of a panel by the World Trade Organization (WTO) Dispute Settlement Body (DSB) in December 2009 to examine complaints brought by the United States, the European Union (EU), and Mexico concerning China's export restriction policies. While export restrictions undermine the stability of the multilateral trading system by distorting global markets, the WTO law regulating this field arguably represents a case of 'under-regulation' or 'regulatory deficiency'. Hence, stricter WTO regulation in this area of apparently large 'policy space' is needed. However, various reform proposals submitted to the WTO face strong opposition mainly from developing countries. In this context, this article attempts to illustrate how a sufficiently 'differentiated' reform agenda on export restrictions could help maintain the stability of the multilateral trading system while addressing the legitimate concerns of developing countries.
Free Trade and Cultural Policies: Evidence from Three US Agreements
Authors: Gagné Gilbert
Published: April 2022

Through preferential free trade agreements (FTAs), the United States seeks to secure concessions in sectors, such as cultural and audiovisual services, from which to set precedents for its next trade liberalization endeavours. Insisting on wide-ranging liberalization and predictable, clearly defined trade rules, the United States has used a top-down or negative list approach. Hence, sectors and measures, in the fields of services and investment, not specifically excluded are covered by liberalization commitments. On the other hand, states are encouraged to use a wide array of financial and regulatory instruments in the pursuit of cultural policies under the 2005 United Nations Educational, Scientific and Cultural Organization (UNESCO) Cultural Diversity Convention, which the United States has strongly opposed for its potential trade-restricting effects. In view of the deadlock in current multilateral trade negotiations, the hortatory character of the provisions of the Convention, and the US stance on the treatment of cultural goods and services in international economic exchanges, US FTAs are to prove the main source of legal constraints as to states' ability to pursue cultural policies.
Why are the Trade Gains from the Euro-Mediterranean Partnership so Small?
Authors: Roux Nathalie , Péridy Nicolas
Published: April 2022

This article shows first that, despite significant trade gains expected from the Euro-Mediterranean Agreements, especially the Barcelona Agreement, actual gains are positive but small. The reasons for such small effects are investigated. They include delays in the implementation of the tariff schedule, the lack of European Union (EU) market access for agricultural products, the persistence of non-tariff barriers, the lack of regional integration in terms of services and Foreign Direct Investment (FDI), the role of rules of origins, the impact of inappropriate specialization, etc. This appraisal makes it possible to suggest several policy options which are necessary to optimize the effects of the Euromed partnership. In this regard, the Arab Spring creates new opportunities to reinforce trade integration in this area.
Is Something Going Wrong in the WTO Dispute Settlement?
Authors: Woznowski Jan , Depayre Gérard , Cartland Michel
Published: April 2022

The World Trade Organization (WTO) is in crisis with all three of its main functions in decline. Most conspicuously, the negotiations in the Doha Round are stalled because of the profound shift in trade and economic power and after the repeated failure of a negotiating approach which ignored the lessons of the Uruguay Round, a round which succeeded by building consensus at the technical level before trying to take it to the political level. As a result of an excessive concentration on the negotiations, monitoring and surveillance of the implementation of WTO rules have been seriously neglected. It is most alarming that dispute settlement, the main focus of the paper and long considered the area in which the WTO has been most effective, is now in danger of losing the confidence of Members, following a series of questionable rulings by the Appellate Body. The Appellate Body Report on US - Definitive Anti-dumping and Countervailing Duties on Certain Products from China is a remarkable illustration of this troublesome situation.
Poison in the Wine? Tracing GATS-Minus Commitments in Regional Trade Agreements
Authors: Adlung Rudolf
Published: April 2022

Commitments in regional trade agreements (RTAs) that fall short of the same countries' obligations under the General Agreement on Trade in Services (GATS) are a relatively frequent phenomenon. However, they have gone widely unnoticed in the literature to date and drawn little attention in World Trade Organization (WTO) fora. Nevertheless, such 'minus commitments' are poisonous. Given the broad definitional scope of the GATS, extending inter alia to commercial presence, they may affect third-country investors, cast doubts on the status of the respective agreements under the GATS and have severe implications for the trading system overall. Without clear cross-references to existing GATS commitments, many RTAs remain insulated and are virtually impossible to multilateralize. This study seeks to develop a reasonably comprehensive picture of the frequency of 'minus commitments' and their dosage in terms of sectors, measures and modes of supply. It also discusses potential remedies from a WTO perspective.
The Evolution of Preferential Rules of Origin In ASEANs RTAs: A Guide to Multilateral Harmonization
Authors: Bum Kim Jong
Published: April 2022

Restrictive preferential rules of origin cause producers in RTAs to source intermediate materials from RTA partners instead of non-parties in order to meet the rules of origin requirements. For RTAs concluded under Article XXIV, restrictive preferential rules of origin open doors to selective tariff liberalization in violation of GATT Article XXIV. For RTAs concluded pursuant to the Enabling Clause, restrictive preferential rules of origin may result in 'undue difficulties' to non-parties in violation of the Enabling Clause. In order to address the inconsistencies with the WTO law, restrictive preferential rules of origin should converge to the WTO harmonized non-preferential rules of origin (NPROO), which would be deemed non-protectionist. However, in view of the slow progress of harmonizing NPROO in the WTO, we propose an alternative approach based on the evolutionary development of preferential rules of origin in the ASEAN's RTAs. As a second-best solution, we propose that all RTA rules of origin adopt a general rule applicable to all non-wholly obtained products: the 40% value-added rule or a change in tariff heading (CTH). In conjunction with the general rule, a limited number of product-specific rules of origin that are coequal to the general rule should be permitted so as to provide some room for flexibility for RTAs to accommodate divergent existing preferential rules of origin. The proposed general rule would further enhance the conformity of RTAs with the WTO system by harmonizing preferential rules of origin across RTAs and across different product lines.
Legal Capacity and Developing Country Performance in the Panel Stage of the WTO Dispute Settlement System
Authors: Zeng Ka
Published: April 2022

Existing literature has yielded some evidence suggesting that developing countries are less likely to file World Trade Organization (WTO) trade disputes or to secure concessions in the consultation stage instead of the panel stage of the dispute settlement process. Furthermore, this 'bias' in the use of the dispute settlement mechanism against developing countries has often been attributed to developing countries' lack of legal capacity, or the financial, human and institutional resources available to analyse, pursue or litigate a dispute. However, much of this literature focuses on the constraining effect of legal capacity in the pre-panel ruling stage of the process. This article extends previous research and uses various alternative measures of legal capacity to more systematically analyse the effect of legal capacity on developing countries' performance during the panel stage of the dispute settlement process. Empirical analysis of WTO disputes filed by developing countries that have ended with a panel ruling between 1980 and 2010 shows that developing countries with greater government efficiency and regulatory quality are more likely to obtain positive panel rulings, although there is little evidence suggesting that legal capacity as measured by the size of a country's delegation in Geneva or its past experience in initiating WTO disputes may enhance its prospect of successfully defending its legal claims in the panel stage of the dispute settlement process. This result reinforces prior findings about the disadvantages developing countries face in the dispute settlement system and underscores the need for developing countries to engage in domestic capacity building in order to enhance their chances of successfully litigating at the WTO.
An Evaluation of the WTO Committee on Trade and Environment
Authors: Sinha Manisha
Published: April 2022

This article surveys the work done by the Committee on Trade and Environment (CTE) in the World Trade Organization (WTO) and evaluates its success in fulfilling its mandate. It looks at the genesis of the CTE so as to comprehend the specific factors that led to its establishment, in the light of which its work is surveyed in detail. The article concludes that the CTE has been instrumental in identifying and understanding the relationship between trade and environment. By providing the WTO Members with a forum for debate and discussion the CTE has become fertile ground for the germination of new proposals, some of which have been incorporated into the Doha negotiating agenda, thereby making a positive contribution towards smoothening the fault lines between trade and environment.
A Map of the World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Ta
Authors: Trachtman Joel P.
Published: April 2022

The search for an appropriate balance between trade liberalization and regulatory autonomy lies at the heart of the WTO system. In this paper, the authors examine the relationship between three WTO Agreements regulating trade in goods - the GATT 1994, the SPS Agreement, and the TBT Agreement - and explore how these treaties, individually and together, define the sphere of domestic regulatory autonomy in the context of the multilateral trading system. Drawing on new Appellate Body jurisprudence, including the recent TBT 'trilogy', this article provides a 'map' of WTO regulation of trade in goods and sheds light on the types of rules and standards contained in each Agreement, their relationship to domestic regulation and the regulatory process, and the way they incorporate by reference norms outside of the WTO system. The article also discusses the bases for invoking each Agreement and evaluates the circumstances in which they may overlap.
The WTO Consistency of the European Union Timber Regulation
Authors: Geraets Dylan , Geraets Dylan
Published: April 2022

The Timber Regulation is the EU's latest addition to its regulatory framework on forestry governance.This article first provides an overview of the substantive provisions of the Regulation. The second part of the article focuses extensively on the WTO-consistency of the Regulation, based on an analysis of Articles XI, III and I GATT. In the view of the authors, although the EU Timber Regulation is likely to violate at least one substantive WTO provision, it is probably justifiable on the basis of Article XX GATT.
The Quest for Accountable Governance: Embedded NGOs and Demand Driven Advocacy in the International Trade Regime
Authors: Hannah Erin Norma
Published: April 2022

The ongoing failure of the multilateral trade regime to deliver on global development priorities has produced a new brand of expert. Embedded NGOs have emerged with the expressed aim to socially embed global markets, carve out additional policy or development space for developing countries, increase their negotiating capacity, and promote the three pillars of sustainable development - economic, social and environment. Eschewing conventional advocacy or protest work that challenges received wisdom, Embedded NGOs leverage their legal and technical trade-related expertise across a range of issue areas that are of primary concern to poor countries. This article develops a conceptual framework for analysing the impact of Embedded NGOs on the World Trade Organization's (WTO) accountability regime. While Embedded NGOs show good prospects for improving the inclusion and negotiating capacity of developing countries, the institutional and geographical attributes of Embedded NGOs, the uneven engagement by Embedded NGOs with developing countries, their commitment to a liberal economic order, and the internal and external accountability of Embedded NGOs themselves serve to reinforce dominant trade narratives and power asymmetries in global trade.
The Legality of Local Content Measures under WTO Law
Authors: Nielsen Laura , Hestermeyer Holger P.
Published: April 2022

Local content measures have proliferated and become a popular tool for governments to incentivize national industry. This article sets out a typology of such measures and analyses the legality of the different types of measures under WTO law. Questions arise not only with respect to national treatment, the government procurement exemption and the rules on state trading enterprises under the GATT, but also with respect to the TRIMs Agreement, the SCM Agreement as well as the GATS. The article concludes that very few measures can be considered compatible with WTO law.
China-India FTA: Is the Future Imperfect?
Authors: Sharma Rajesh
Published: April 2022

The China-India bilateral relationship has always been influenced by three Ts: Territory, Tibet, and Trade. Although the political relationship due to border dispute and Tibet has been on the edge, the trading relationship between China and India has been moving forward steady. As the political relationship between China and India is becoming more strong and strategic, it is most likely that China and India to drive their economic relationship at higher level. In that respect, an Free Trade Agreement (FTA) between China and India is inevitable. The benefits of FTA such as free flow of goods, services, investments, technology, capital which can be beneficial for the development, stability, and growth of the countries as well as the region can be locked in by adopting a dispute settlement system with fair and efficient procedures and practices. Moreover, an inefficient dispute settlement mechanism can be an effective non-tariff trade barrier. In other words, it might be accurate to say that dispute settlement mechanisms which are inefficient and ineffective actually block trade. Therefore, the FTA between China and India, in addition to liberalization of economy and reducing the tariff; it should also contain a comprehensive rules of dispute settlement which is practical, efficient and effective.