bluuebunny/crossref_metadata_2025 huggingface dataset:
Duty as a Cost in EU Anti-Dumping Refunds: The Triple Jump and Other Obstacles to Success
Authors: MacLean Robert M.
Published: April 2022

The issue of duty as a cost in European Union (EU) anti-dumping refunds has been dormant for some time now. However, there are many reasons why this issue has resurfaced in recent times as a bone of contention between the European Commission and refund applicants. This article examines one of the main obstacles for EU related importers obtaining full entitlement to refund payments, namely the deduction of EU anti-dumping duties from constructed export prices to reach revised dumping margins for the purposes of awarding refunds. It also examines and questions some of the Commission's current practices and interpretations of this concept.
Trade Dimensions of Logistics Services: A Proposal for Trade Agreements
Authors: Sáez Sebastián , Kunaka Charles , Antoci Monica Alina
Published: April 2022

Services have a direct impact on the competitiveness of the goods sector. This article illustrates the importance of logistics services, their trade dimension and how regulatory issues act as perhaps one of the most significant barriers to competitiveness. The article discusses recent developments and the role and benefits of logistics services and argues that from a trade agreement standpoint, logistics is a network industry that ultimately provides one service to a final client. It analyses logistics services from a services trade perspective and proposes that trade agreements should ensure access to and use of the infrastructure required to provide these services recognizing their interconnectedness. The article offers suggestions on additional policies World Trade Organization (WTO) members, and countries negotiating services agreements regionally or bilaterally, could follow in order to fully exploit the opportunities provided by logistics services. Local regulations and complementary policies in areas such as trade facilitation will always remain important.
Brazil and the G-20: Domestic Pressures and the Construction of the Negotiating Position in the Doha Round of the WTO
Authors: Mariano Marcelo Passini , Júnior Haroldo Ramanzini
Published: April 2022

The purpose of this text is to examine the actions taken by the Brazilian Government in the G-20 coalition, within the context of the Doha Round of the WTO, the main focus being to understand the domestic decision-making process that led to the formulation of Brazil's positions within the coalition. We seek to understand to what extent Brazilian foreign policy has been influenced by domestic pressures with regard to Brazil's positions within the G-20, as well as to assess the influence exerted by domestic governmental and non-governmental actors on the process of formulation and implementation of the Brazilian strategy in the G-20 coalition during the 2003-2008 period. We maintain that the way Brazil acted in the G-20 is related both to the internal process by which the country's negotiating position was built and to the limits established by the very logic of the negotiations. The decision-making process that built the Brazilian position has been an important variable in the maintenance of the coalition.
Authentication and Recognition Issues in Cross-Border Single Window
Authors: Srivastava Aashish , Shah Hemali
Published: April 2022

Single Window (SW) is a facility that allows parties involved in trade and transport to lodge standardized information and documents (mostly in electronic form) at a single entry point, and easily comply with all import, export, and transit-related regulatory requirements prescribed by government agencies. Over seventy-one countries and economies have introduced some form of SW that has successfully led to efficient and effective data submission processes for import and export operations, and, in turn, brought substantial benefits to each government and trading community. The success of SW at a national level has led regional and international organizations to evaluate the prospect of a Cross-border SW (CSW). However, overlaps of jurisdiction between different legal systems create issues in establishing a CSW.

This article aims to provide an overview of one complex legal issue - electronic signatures that needs to be addressed in order to create conditions for a legally effective CSW. In particular, it examines the existing electronic signature laws and regulations of Australia, the UK, China and Singapore. It evaluates whether the current regulatory framework in the four countries facilitates or impedes the operation of a CSW, and concludes that the diverse electronic signature laws and regulations in the four countries do, in fact, impede the CSW's implementation. The article also makes some useful suggestions as to how to achieve a harmonized and coherent electronic signature regulatory framework for a CSW system.
Trade-Plus Effects of WTO Dispute Settlement on China: An Ideal or Illusion?
Authors: Chi Manjiao
Published: April 2022

China has actively participated in WTO dispute settlement over the past decade. It was hoped that China's WTO accession and participation in WTO dispute settlement could provide an external force to further China's reform. Due chiefly to the expansionist trend of the WTO regime and China's non-market economy, party-state regime and highly politicized WTO accession strategy, WTO dispute settlement sometimes exerts effects on China that are beyond the area of trade. Although China is sensitive and vulnerable to such trade-plus effects, a case study of China's relevant WTO disputes shows that, in general, China has successfully accommodated such effects to date. Therefore, despite its positive role in helping China improve trade governance, WTO dispute settlement has insofar played a limited role in furthering non-trade reform in China.
Procurement Liberalization Diffusion in EU Agreements: Signalling Stewardship?
Authors: Garcia Maria
Published: April 2022

The European Union (EU) has concluded bilateral trade agreements with Korea, Latin America, Central America and CARIFORUM states. Using the example of procurement liberalization commitments undertaken by the EU and partner countries, this article analyses how conformity between bilateral agreements and the WTO plurilateral Government Procurement Agreement is likely to promote competition and transparency, and be a stepping stone to future multilateral liberalization. It argues that liberalization through bilateral agreements will first, promote and reinforce EU's prominence in shaping future multilateral liberalization; second, fulfil EU's aspiration of playing a leading role in defining the map of 'global governance' for future multilateral liberalization.
Tuna-Dolphin Revisited
Authors: Kelly Trish
Published: April 2022

The article explores WTO rulings in the longstanding tuna-dolphin dispute between the US and Mexico. While some US environmentalists perceived the rulings as diminishing dolphin protection, it appeared that the US could satisfy its WTO obligations by strengthening rather than weakening its dolphin-safe regime. This was an important outcome but one that was easily overlooked because the WTO rulings went against the US and appeared to conflict with US court rulings. However, as the article reveals, the WTO dispute centred on legal issues and to some extent scientific evidence that differed from those in the federal court cases. The tuna-dolphin dispute is also of interest because the role of unsolicited amicus curiae briefs in WTO proceedings was unexpectedly enhanced during the panel phase of the deliberations.
Beyond Market Access?: The Anatomy of ASEANs Preferential Trade Agreements
Authors: Kleimann David
Published: April 2022

This article seeks to enhance the understanding of ASEAN's external Preferential Trade Agreements (PTA) in context of the recent growth of economic regionalism in East Asia. The article advances a comparison of the content of ASEAN's five plurilateral PTAs with China, Korea, Japan, India, Australia, and New Zealand with the status quo of ASEAN's internal economic integration. In a second step, the article compares ASEAN's plurilateral agreements and ASEAN's internal integration with the content of six bilateral PTAs that individual ASEAN Member States have concluded with Japan. The empirical findings demonstrate that the ambition of ASEAN's five plurilateral agreements finds its upper limits in the substantive content of ASEAN's internal economic integration. Within these limits, the coverage and depth of commitments varies considerably and corresponds to the intensity of trade between ASEAN and the respective external partner. Moreover, the comparison shows that bilateral PTAs between six individual ASEAN Member States and Japan go significantly beyond the status quo of ASEAN's internal integration and exceed the coverage and depth of ASEAN's external plurilateral PTAs. The author contends that the coverage and depth of ASEAN Member States' plurilateral PTAs is limited by the structural heterogeneity of the signatories and, as a result, a relatively high diversity of policy preferences. Bilateral PTAs between ASEAN Member States and the same external partners result in deeper commitments than the plurilateral accords because of both a higher common denominator among the parties to the agreements and the free-rider problem that persists in plurilateral negotiation settings. Moreover, it is argued that the coverage and depth of the agreements is a function of the intensity of trade among the parties: high trade intensity results in deeper and more comprehensive agreements that tackle twenty-first century trade issues, whereas low trade intensity results in shallow agreements that aim to reduce first-generation trade barriers. These hypotheses, which are fully verified by the empirical findings of this study, allow for conclusions about the role of ASEAN Member States - collectively and individually - in current and future economic integration initiatives.
The Concurrent Trade Defence Investigations 19822013: The Changing Pattern and Characteristics
Authors: He Haiyan , Li Siqi
Published: April 2022

Anti-dumping (AD) and countervailing duty (CVD) measures are common trade defence instruments that enjoy the special political status of being permitted by the WTO. The AD measure is more frequently used by WTO Members against foreign enterprises' dumping behaviour while the CVD measure is more policy concerned and less used by WTO Members. However, there has been a proliferation of WTO Members launching AD and CVD investigations simultaneously against the same set of products from the same country, especially targeting some non-market economies. This article is one of the first attempts to investigate the proliferation of concurrent AD and CVD investigations by adopting the large sample data during the period from 1982 to 2013, trying to shed light on the global and country use of concurrent AD and CVD investigations and address some striking findings.
Public-Private Partnership: The Chinese Dilemma
Authors: Gao Henry
Published: April 2022

As noted by Greg Shaffer in his book 'Defending Interests: Public-Private Partnerships in WTO Litigation', the US and EU have different approaches to public-private partnership in dealing with foreign trade barriers: the former tends to be more 'bottom-up', while the latter tends to be 'top-down'. Inspired by Shaffer's work, this article examines China's experience in establishing public-private partnership. Initially, China appeared to prefer the American approach by adopting the Rules on Trade Barrier Investigation (TBI), which empowers domestic firms to petition the government directly to launch investigation against foreign trade barriers. However, since 2005, China seems to have shifted to the European approach by adopting a 'Quadrilateral Coordination' system, which pools together the resources of the Ministry of Commerce, local government, and relevant industry associations to help affected individual firms to fight foreign trade barriers. The article analyses the pros and cons of the two systems, the political and social reasons for the shift, and how the new system has worked in practice with case studies. The article concludes with thoughts on the lessons we can draw on the relationship between the government and private firms in China, as well as how the public-private partnership will develop in China in the future.
Trade Remedies: China in the BRICS
Authors: Yu Yanning
Published: April 2022

Over the past decade, an alliance of the most powerful emerging economies, the acronym so-called "BRICS," has drawn dramatic attention in the world market. This is because this new group of countries represents a significant share of the global GDP and a large portion of international trade, which is expected to surpass those developed countries, such as the United States and the European Union, in the coming years. Although the BRICS mechanism has started to work, the economies within the mechanism are not deeply integrated with each other. Several factors may contribute to this failure. For example, further commitments towards greater liberalization within sectors of goods and services have not been made amongst the group. Moreover, on the other hand, frequent use of trade remedy measures against exports from other economies amongst the group demonstrates that the current framework of the BRICS mechanism is much like a platform for powerful emerging economies to seek the political discourse of power in the world rather than a real alliance for trade.
The WTO Trade Facilitation Agreement: Form without Substance Again?
Authors: Finger Joseph Michael
Published: April 2022

The WTO Trade Facilitation Agreement provides flexibility for Developing Members by allowing them to accept only the legal obligations they attach as "schedules"- as the schedules attached to a tariff agreement. The possibility that Developed Members can induce broad acceptance by Developing Members through reciprocal negotiation is compromised by Developed Members not having the flexibility of attaching schedules-they must accept all of the disciplines of the agreement. Inducing broad acceptance by Developing Members through the provision of assistance (i.e., paying Developing Members to do so) is compromised by the agreement not bringing the provision of assistance within its legal obligations. The agreement thus fails to bring reciprocity to bear on the acceptance of discipline over trade controls and fails to give operational content within the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) legal system to the provision of assistance to developing countries. I conclude that it is another example of the "form without substance" (Robert Hudec's earlier conclusion) that has characterized the GATT/WTO system's relations with developing countries since its beginning.
China in the WTO Dispute Settlement: A Memoir
Authors: Guohua Yang
Published: April 2022

From my eighteen years of work at China's Ministry of Commerce, of which over a dozen years on China WTO cases, from the first-ever U.S.-Steel Safeguards to most of the important cases, I try to provide in this article a general understanding in China: WTO dispute settlement system is a peaceful and an effective way to solve trade issues between China and other WTO members, and China is becoming more and more confident in this system as it is experiencing more and more cases. The 'evidence' is found in training courses and seminars on the WTO in the early days, its first 'exciting' case, the first five 'quiet' years, the second five 'noisy' years, and the subsequent 'normal' years. It concludes by introducing the group of people working in this area, pointing out the significance of these cases, i.e., the rule of law in China, and expecting a better future for both China and the WTO with academic research and school teaching.
The Scope for Trade Restrictions to Address the Lack of Compliance with Fire Safety Standards in Garment Factories of Bangladesh
Authors: Muquim Naimul , Islam Md. Rizwanul
Published: April 2022

The frequent incidents of fire attributable to systemic lack of compliance with fire safety standards in garment factories of Bangladesh has been a recurring problem taking away lives of many workers over the years. The manufacturers possessing significant economic and political clout have almost invariably escaped the sanctions of the national legal system. This paper argues that a trade restrictions regime imposed by a major importing country of garment products of Bangladesh may force the manufacturers to improve compliance with the relevant laws and engender the necessary change to provide workers with a safe working environment. It argues that such a trade restriction regime should neither be country nor even industry-wide, rather be targeted to rouge manufacturers acting in violation of safety laws. However, analysing the policy grounds and relevant WTO jurisprudence, this paper finds that despite the desirability of such a scheme, it would unlikely to be WTO-compliant.
Clearing the Smoke: The Legitimation of Judicial Power at the WTO
Authors: Shlomo-Agon Sivan
Published: April 2022

What role, if any, does the search for judicial legitimacy play in judgments rendered by the World Trade Organization (WTO) Dispute Settlement System (DSS)? And with which audiences, and through which judicial means does the WTO DSS try to communicate in order to sustain its legitimacy? Empirical evidence generated through semi-structured interviews with WTO practitioners demonstrate that since its inception, the interstate WTO DSS has been engaged in a continuing quest for legitimacy amidst multiple audiences, well beyond WTO Member States. This quest – prominent in the dispute-category known as ‘trade-and’ disputes – has manifested itself in both the rhetorical, procedural, and substantive judicial choices taken by WTO adjudicators. Also, this quest has not been static, but rather dynamic in nature, whereas in response to some audiences’ demands, jurisprudential, procedural and rhetorical readjustments have been made along the way. The article demonstrates these assertions through discursive analysis of the recent US-Clove Cigarettes dispute, while revisiting several earlier jurisprudential milestones on the DSS’ road to legitimacy. Coupling this analysis with insiders’ views, the article sheds a novel empirical light on how the DSS’ legitimacy challenges in ‘trade-and’ disputes are experienced ‘from within’, and the manner in which they are subsequently weaved into the choices taken by WTO adjudicators in their strategic judicial space.

[M]ost adjudicators have a sense at an intuitive level as to what the main elements of ‘legitimacy’ are. One would be transparency, due process… consistency with existing case law, like arguments being treated the same way….And one of those things… would be understanding the audience… knowing who the audience is for a particular type of decision and drafting the decision, at least stylistically in some respects, in a way that the audience will perceive it as being legitimate, and the audience for a dumping case will be different from the audience for US-Clove Cigarettes.

Interview with WTO official, 13 March 2012, Geneva
The Protracted WTO Battle over a Multilateral GI Register: What Lies Beneath?
Authors: Das Kasturi
Published: April 2022

The November 2014 breakthrough on the Trade Facilitation Agreement might have gone some way in infusing a new lease of life to the WTO as an institution, the same can hardly be said for most of the other Doha Round issues that still appear to be trapped in a blind alley. The issue of the creation of a multilateral register of Geographical Indications (GIs) for wines and spirits is one such area. Despite several years of wrangling, arriving at a landing zone on this issue still appears to be a far-fetched dream, if the mood expressed by the WTO Members in the December 2014 informal meeting on the multilateral register is anything to go by! Written against this backdrop, the present article has two objectives. First, it makes an attempt to trace the historical, legal as well as economic reasons underlying the protracted debates on GIs under the WTO and beyond – which have widely been referred to as one between the ‘Old World’ (e.g., the EU, Switzerland) and the ‘New World’ (e.g., the US, Australia, Canada, Argentina, Chile, etc.). Second, the article provides a snapshot of the long-drawn WTO negotiations on the multilateral register for wines and spirits under the Doha Round.
Participation Constraints in the WTO Dispute Settlement: Considering Kazakhstan
Authors: Galyamov Ruslan , Amirbekova Alua
Published: April 2022

This study examines participation constraints faced by developing countries and the impact of wealth and power (the power hypothesis) or economic and legal capacity (the capacity hypothesis) of a Member State on its decision to file a legal complaint against a specific other member at the World Trade Organization (WTO). Empirical research of 486 WTO disputes filed between 1995 and 2014 indicates that legal capacity matters more than power considerations in the WTO members’ legal dispute settlements. This study is based on the premise that Kazakhstan does best when using the WTO dispute settlement system (after its accession to the WTO) against its main trading partners. Moreover, it attempts to predict the maximum gross domestic product (GDP) levels of Kazakhstan’s potential defendants. The main findings are that under the legal capacity theory, Kazakhstan’s economic features (such as GDP per capita, international trade position, government efficiency, military and non-military government spending, and others) are sufficient to proceed with legal claims against the Netherlands, Austria, Romania, Portugal, and Belarus.
Pitching outside the DSU: Preliminary Rulings in WTO Dispute Settlement
Authors: Ram Jayant Raghu
Published: April 2022

It has become the norm for WTO panels to issue rulings on preliminary issues such as jurisdiction, terms of reference and other related issues pertaining to a dispute upon the request of the disputing parties at the preliminary stage itself. In recent practice, panels have even started to circulate these preliminary rulings. Panel practice on preliminary rulings has developed despite of the absence of any express or implied provision in the Dispute Settlement Understanding. This paper discusses panel jurisprudence pertaining to preliminary rulings on salient aspects such as the scope of preliminary rulings, the timing of requests, et al. It also discusses issues pertaining to preliminary rulings which have legal bearing on the WTO dispute settlement system such as circulation, appellate review, and adoption; some of which WTO Members have themselves identified. While the practice of issuing preliminary rulings may be beneficial to the WTO’s Members and the dispute settlement system as such, the unfettered practice of issuing preliminary rulings coupled with the absence of any express rules or a formal WTO understanding regarding the same raises certain systemic concerns. Given the systemic importance and utility of preliminary rulings in WTO dispute settlement, and also the legal uncertainties that may arise, it would be in Members’ best interests if they took steps to codify current practice to ensure uniformity. However, a better alternative may be for panels/AB to develop the extant framework by either adding or modifying the Working Procedures.
Data Exclusivity for Biological Pharmaceuticals: Is New Zealand in Breach of World Trade Organization Law?
Authors: Hegedus-Gáspár Máté
Published: April 2022

The protection of intellectual property (IP) rights is riddled with conflicts of interests. The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter ‘TRIPS Agreement’) introduced standards in order to harmonize IP law enforcement simplifying the task of finding the appropriate level of protection. In some cases IP protective measures result in severe trade restrictions, which can, nevertheless, be justified by virtue of their compliance to TRIPS. However, some trade restrictive intellectual property rights (IPRs) are not covered by TRIPS. This research explores a way in which the enforcement of IPRs falling outside TRIPS can be reconciled with obligations relating to the elimination of trade barriers under the General Agreement on Tariffs and Trade (GATT). The rationale is that TRIPS provides guidance as to the application of Article XX(d) GATT in relation to trade restrictive measures that enforce IPRs. This approach is applied in this article to determine whether, in granting protection to IP in clinical test data relating to biological pharmaceuticals, New Zealand complies with its obligations under the GATT, given that TRIPS does not recognize this IPR and does not provide for its protection.
ASEANs Long Journey to Effective Trade in Goods Liberalization: Scope and Depth of Integration Commitments Under the ASEAN Trade in Goods Agreement
Authors: Tevini Anna G.
Published: April 2022

The Association of Southeast Asian Nations (ASEAN) was the first regional arrangement in East Asia to establish a legal framework for regional economic integration in the late 1970s. During the first twenty-five years of its existence, this framework, however, remained overall vague, ambiguous, and largely ineffective. It was not until 2003, amidst a surge of regional trade agreements in East Asia and elsewhere that ASEAN Members undertook a consolidated effort to establish a more modern and cohesive legal integration framework on which to build an ‘ASEAN Economic Community’ (AEC). The ASEAN Trade in Goods Agreement (ATiGA), adopted in February 2009 and effective as of May 2010, is the centerpiece of the AEC. This article assesses the scope, depth, and legal mechanisms for trade in goods integration under ATiGA, while highlighting key differences compared to ASEAN’s prior trade integration framework under the 1992 ‘Common Effective Preferential Tariff’ scheme.
The Politics and Outcomes of Preferential Trade Strategies: Evidence from TRIPS-Plus Provisions in US-Latin America Relations
Authors: Tang Yi Shin
Published: April 2022

This article investigates the circumstances under which the agenda of intellectual property rights (IPRs) influences the decision of states to pursue preferential trade agreements (PTAs). Governments are often prone to negotiate PTAs due to distinctive pressures from IPR-intensive industries to disseminate TRIPS-Plus standards, which are particularly willing to capitalize on the advantages of preferential arrangements. To illustrate this argument, we examine the processes around the expansion of IPR provisions in the PTAs signed by the United States with Latin American countries, as enabled by the Trade Promotion Authority Act of 2002. We find that, while broad variations of TRIPS-Plus standards emerged across these PTAs, both governments and private sector tend to perceive gains from this setup, since PTAs are unlikely to undermine the IPR standards achieved by the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter ‘TRIPS Agreement’), but still provide opportunity for the promotion of higher IPR standards in each individual market.
The Changing Global Trade Architecture: Implications for Africas Regional Integration and Development
Authors: Ismail Faizel
Published: April 2022

This article analyses the trends in global trade since the beginning of the new millennium and discusses the implications of these trends for Africa’s regional integration agenda. The article argues that the mainstream narrative of market and linear integration is inappropriate for Africa and should be replaced by a development integration approach. It calls for Africa’s main trading partners; the EU, the US and China to align their trade relationships with Africa in support of Africa’s own vision and Programme for regional integration reflected in the Continental Free Trade Area (CFTA) and Agenda 2063.
MDBs Accountability Mechanism: A Perspective of AIIB
Authors: Bin Gu
Published: April 2022

Within the sphere of multilateral development banks’ (MDB) dispute settlement, the accountability system is one stellar important development. It is essentially MDBs’ legal efforts to address complaints made by people adversely affected by an MDB-funded project. Such complaints arise from concerns with environmental and social implications, including involuntary resettlement and human rights violations. Under this system, Bank investigators assess Bank staff’s compliance (or noncompliance) with Bank operational policies and procedures relating to project design, appraisal and/or implementation. The World Bank’s Inspection Panel is a leading example for establishing a credible accountability culture and mechanism. The Asian Infrastructure Investment Bank (AIIB) is the first MDB initiated by a group of Asian developing countries with China at the centre. The AIIB’s committed high standards can only be possible with a fair and effective accountability mechanism.
Chinas Nonmarket Economy Treatment and US Trade Remedy Actions
Authors: Lee Jieun
Published: April 2022

The price comparability provision of China’s accession protocol recognizes that WTO members may face special difficulty in determining subsidies and dumping from China, due to its government’s pervasive intervention in the economy. The provision permits importing members to disregard domestic prices or costs in China and to use alternative benchmarks in determining the normal value of Chinese exports. Consequently, this so-called nonmarket economy (NME) methodology tends to inflate antidumping and countervailing duty rates.

Certain paragraphs of the provision determining dumping expire on 11 December 2016, and yet the heated debate on China’s economic status post-December 2016 remains ongoing. This article studies the history of US trade remedy actions against nonmarket economies and traces recent developments and findings at the WTO dispute settlement body. Congressional history shows that antidumping regulations in the US have been constantly amended to catch up with agency practices that discriminate against nonmarket economies. Meanwhile, the Department of Commerce (DOC) recently started to apply countervailing duties on Chinese imports and has finally codified such practices into law. The article offers many reasons to believe that the US is equipped with various trade remedy measures to continue ‘special treatment’ against China, even if the country graduates from a NME status.
The Complexity of Using the Patent Standards Under TRIPS for the Promotion of Domestic Industrial Development in Developing Countries in the Absence of Local Working Requirements: Rethinking the Role
Authors: Manu Thaddeus
Published: April 2022

This article confronts the most basic question, which is whether in its traditional legislative intent the principle of patent working requirements would as an instrument of government policy in the mist of global value chains definitely guarantee industrial growth for developing countries and least developed countries LDCs. The author argues that globalization has promoted an increasing fragmentation of production, that is, in a dynamic economic efficiency and open trade environment, much of manufacturing today is trade in components from different sources, and seeking to produce all of them locally would be contrary to division of labour and undermines the very existence of the WTO’s mandate to preserve the basic principles and to further the overriding objectives underlying the multilateral trading system, which is to reduce barriers to trade and to the elimination of discriminatory treatment in international trade relations. Therefore, a key distinction in thinking about policy is that as an instrument of government policy the patent working requirement is, on its own, insufficient, less prudence and not the smartest route to secure rapid socio-economic growth, as countries have more to lose from a confrontational scenario of implementing patent working requirements, and more to gain when they join the global supply chain to exploit its numerous opportunities.
The Post-Brexit Management of EU Agricultural Tariff Rate Quotas
Authors: Downes Chris
Published: April 2022

Quantitative agricultural concessions are generally acknowledged to be one of the more complex post-Brexit issues facing trade negotiators. The challenge is commonly conceptualized as one of ‘splitting’ existing EU-28 obligations, namely tariff rate quotas (TRQs), between the UK and the remaining EU-27. While an intuitive response to the trading system’s goal of maintaining the balance in negotiating concessions, this article questions the consistency of this approach with WTO law and reflects on the potential risks to the EU of renegotiating TRQs. The article further considers the process by which the UK will establish the post-Brexit form of its current obligations, exploring the merits and pitfalls of, on the one hand, negotiating modifications in accordance with GATT Article XXVIII and, on the other, non-negotiated certification of its revised schedules. It concludes that the UK may be prudent to seek Article XXVIII agreement with trading partners on newly articulated concessions and that the EU may be wise to leave current agricultural TRQs undisturbed. In the absence of a bilateral agreement between the UK and EU, the latter may be obliged to increase rather than reduce its quotas to remain in compliance with WTO obligations.
Services in the Trans-Pacific Partnership: What Would Be Lost?
Authors: Gootiiz Batshur
Published: April 2022

As the fate of the Trans-Pacific Partnership (TPP) hangs in balance, an evaluation of what it offers could inform current decisions and shape future negotiations. The TPP’s services component has been hailed as one of the agreement’s major accomplishments. To assess the agreement’s impact on national policy in the major services sectors, we created a new public database. This database reveals that TPP commitments seldom go beyond countries’ applied policies, suggesting the explicit liberalization resulting from the agreement is limited only to a few countries and a few areas. However, the TPP enhances transparency and policy certainty because parties’ services commitments cover more trading partners, more sectors and are in some cases closer to applied policies than their commitments under previous agreements. Furthermore, new TPP rules, including on state-owned enterprises, government procurement and competition policy, could enhance services market access. In particular, the TPP breaks new ground in prohibiting restrictions on international data flows, while at the same time creating unprecedented obligations on all parties to protect consumers from fraud and protect privacy. These dual obligations on importing and exporting countries represent a model for regulatory cooperation that could elicit greater market opening if applied to other areas.
Customs Cooperation in the WTO: From Uruguay to Doha
Authors: Wu Hao
Published: April 2022

From the Uruguay Round to the Doha Round, the issue of customs cooperation has been discussed in the World Trade Organization (WTO). Customs cooperation in the context of the WTO is mainly conducted in three dimensions: the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), customs valuation, and trade facilitation. Article 69 of the TRIPS provides for customs cooperation against trade in goods infringing intellectual property rights, particularly counterfeit trademark goods and pirated copyright goods. Customs cooperation under customs valuation deals with the truth or accuracy of the good’s declared value and is mainly inscribed in paragraph 8.3 of the Agreement on the Implementation of GATT Article VII and paragraph 12 of the Doha Ministerial Declaration. Article 12 of the Agreement on Trade Facilitation (TFA) sets forth comprehensive rules on customs cooperation. By examining the relevant WTO legal texts, this article contends that exchange of information is at the core of customs cooperation, and that reciprocity, due diligence, good faith, confidentiality are the central principles for exchange of information between customs authorities
The Newest UN Treaty to Facilitate Cross-Border Paperless Trade in Asia and the Pacific: An Insight Preview
Authors: Xue Hong
Published: April 2022

The Framework Agreement on Facilitation of Cross-border Paperless Trade in Asia and the Pacific (Framework Agreement) is a new United Nations (UN) treaty adopted at the UN Economic and Social Commission for Asia and the Pacific (ESCAP) in May 2016. It is now open for the signature of the ESCAP Member States till September 2017. As the most recent UN treaty on trade and development, the Framework Agreement will be an important development as well as a complement to the World Trade Organization Agreement on Trade Facilitation (WTO TFA), which is effective since February 2017. The Framework Agreement creates unprecedentedly the new multilateral legal framework for facilitation of crossborder paperless trade. While maintaining the balance between international trade efficiency, transparency, regulatory compliance and development stimulation, the Framework Agreement crafts the legal mechanisms to harmonize the Member States’ national paperless trade facilities through implementing a common set of the general principles and the relevant international standards and legal instruments. Most significantly, the Framework Agreement creatively enables cross-border mutual recognition of trade-related data and documents in electronic form through its institutional arrangement and supporting operational mechanisms. The Framework Agreement also provides a dedicated intergovernmental platform for capacity building and technical assistance to enable developing countries (including the least-developed countries and landlocked developing countries) to benefit from paperless trade facilitation. The Framework Agreement will open up the new possibilities for trade facilitation and is particularly important for the development of crossborder e-commerce and global digital economy. Its impact and influence will not only be felt in Asia-Pacific region but in the whole world. There has been very few substantive research on this newest treaty law. The Author who has been the primary legal advisor of UNESCAP for the initial research, drafting, negotiation and implementation of the Framework Agreement since 2011 is able to provide the insights on both the legal texts and the in-depth designs of the Agreement.
A More Widely Available Public Good: Proposed DSU Reform and Its Implication for Developing Members
Authors: Lee Jaemin
Published: April 2022

The Dispute Settlement Understanding (DSU) amendment negotiation aims to fix structural problems identified through the application of the DSU since 1995 and to introduce more detailed and coherent provisions in the DSU so as to enhance rule of law. What has not received an adequate attention in this discussion, however, is possible implication of certain DSU amendment proposals vis-à-vis developing Members. Some of the proposals being tabled, while providing an important contribution to the WTO’s dispute settlement mechanism (DSM) by filing the loopholes in the system, could arguably pose new challenges to developing Members’ enhanced participation in a future DSM. On the other hand, some of the proposals for strengthened S&D treatment in the DSU, as proposed by certain developing Members, may run the risk of negatively affecting the neutrality of the WTO as an adjudicator. An amended DSU should be designed to enhance the participation of developing Members, but at the same time specific methods to facilitate the participation should be carefully chosen for the integrity of an international adjudicating proceeding. This article looks into these aspects of the DSU amendment negotiation. It provides suggestions to accommodate the interest of developing Members while maintaining the integrity of the dispute settlement proceedings, so as to achieve the basic objectives of the DSU amendment negotiation.
Resolution of Too-Big-To-Fail Institutions Under Dodd-Frank: America First, GATS Second?
Authors: Van de Ven Laurens Hubert
Published: April 2022

The recent financial crisis showed that financial instability transcends national borders. In the wake of the crisis, many WTO Members adopted new prudential measures, including regulatory instruments to resolve too-big-to fail institutions. The Dodd-Frank Act embodies the US postcrisis response. Dodd-Frank introduced a Resolution Authority, aimed at preventing future government bailouts and bankruptcies of too-big-to-fail institutions. From an international trade perspective, the Most-Favoured-Nation (MFN) and National Treatment (NT) principles of The General Agreement on Trade in Services (GATS) may limit certain applications of the Resolution Authority. US subsidiaries with a foreign parent are not to be treated less favourably than domestic companies or competitors from third countries providing like services. The US could thus fall short of its MFN and NT principles if it uses the Resolution Authority in a selective manner. The Panel Report in Argentina-Financial Services makes it clear that the Prudential Carve-Out will not provide unlimited justification in such cases. In a broader context, it is argued that the GATS’s MFN and NT principles should be seen as a stabilizing force in maintaining financial stability across borders.
Plurilateral Trade Agreements: An Escape Route for the WTO?
Authors: Adlung Rudolf , Mamdouh Hamid
Published: April 2022

Due to the persistent stalemate in the WTO ’ s Doha Round negotiations, various smaller-scale options have drawn attention in recent years, including the negotiation of plurilateral agreements (PAs) among interested governments. There are essentially two types of such agreements, an exclusive and an open variant. While the former apply among the signatories only, the latter are implemented on a Most-favoured-Nation (MFN) basis. To preclude ‘ free riding ’ , the entry into force of such open PAs is usually conditioned on the participation of a ‘ critical mass ’ of countries, representing market shares of some 80% or more – quite a challenging benchmark. To promote more frequent use of PAs, given the plethora of pressing policy concerns, whether investment-, competition- or labour-related, the negotiation of exclusive agreements is being (re-)considered in current discussions. However, the entry into force of any non-MFN-based agreement would need to be accepted by consensus among all 160-odd WTO Members, and this may prove virtually impossible to achieve. This article thus proposes, based on past experience, to further explore the potential for open PAs among interested Members in the form of co-ordinated improvements of current commitments or, if not covered by the existing WTO framework, by way of ‘ WTOextra ’ understandings.
Mission Impossible? The Political Economy of Disciplines on Investment Incentives
Authors: Soprana Marta
Published: April 2022

Investment incentives rank among the most important policy instruments governments employ to influence the locational and behavioural decisions of multinational firms. Following the recent increase in locational competition fuelled by the spread of global value chains (GVCs) and the growing impact of support measures for state-owned enterprises (SOEs), the need for enhanced disciplines on investment incentives has gained political and academic salience. This article explores the evolution of investment incentives from a development and rule-making perspective. Along with a summary of the existing literature, it examines current practices and recent trends in foreign direct investment (FDI) flows and the use of various investment incentives. This is followed by a discussion of the reasons for the observed stalemate in attempts at disciplinary rule-making. The article concludes by putting forth recommendations for data gathering and transparency that could further the move toward improved global governance founded on the increasing complementarities of trade, investment, and competition law and policy.
Internet, Industry and International Trade: Digital Tradability in Services
Authors: Robbins Mark
Published: April 2022

Rising use of digital technologies in the service sector is altering the rules of economic governance and of international trade. Theories of economic development and political economy, such as world-systems theory and Petty’s Law, are being contested by the digital revolution. As technological advances bypass old theory, the service sector is locating globally, with decreasing regard for geography and the assumptions of the old international economic order. This presents new challenges for a legal, commercial and international trade norms and system, which are designed to facilitate tangible cross-border commerce.

 

Old theories of political economy must be revisited to account for the rise of digitally traded services and some, like Petty’s Law, may not survive emergent conditions. The services trade itself is inadequately considered in official government policy, and by international organizations seeking to promote trade, investment and greater cooperation. This work critically evaluates the policy initiatives of major players in trade in light of these trends in the digital economy. While economic institutions claim to advocate policies that are up to date with the new reality of trade, their approaches are still grounded in the superseded economic theories of the twentieth century.
Brexit: Trade Governance and Legal Implications for Third Countries
Authors: Molinuevo Martín
Published: April 2022

The impact of Brexit on the trade relations of EU/UK with third countries is likely to entail an extensive process of amendment to the disciplines and sectoral obligations featured in their current multilateral and bilateral trade and investment agreements. At the WTO, the UK stance will require amending the current EU lists of concessions in a way that may lead to a broad renegotiation process. At the bilateral level, the status of current EU agreements regarding the UK and third countries is uncertain, as these agreements may no longer apply to the UK. Further, agreements on goods, such the customs union with Turkey, will no longer be valid for the UK. Least developed countries (LDCs) and developing countries who benefit from the EU Generalized System of Preferences (GSP) will continue under this regime, but that framework will no longer be applicable to the UK. In all cases, third countries who consider that Brexit has diminished the value of their commitments may request compensation or changes in the text of the agreements, or ultimately terminate the agreement. The process of amending the trade and investment agreements requires comprehensive knowledge of their trade and investment flows with the EU and the UK.