bluuebunny/crossref_metadata_2025 huggingface dataset:
Trade Facilitation: Must for Indias Trade Competitiveness
Authors: Mazumdar Rahul , Sahoo Pravakar , Goswami Niloptal
Published: April 2022

Trade facilitation is a broad framework of practices that simplify and harmonize international trade procedures and domestic practices to reduce trade and transaction costs and time, and ultimately impact the competitiveness of the product and the producer. India aspires to sustain high growth rates and achieve a double-digit growth rate in the medium term to realise its potential demographic dividend. In this context, trade facilitation, along with other policy measures, assumes critical importance, and even more so as India’s exports have been experiencing negative growth for more than a year now. The success of the ‘Make in India’ to boost manufacturing sector depends on how successfully Indian firms are integrated with global value chains and on how successful they are in increasing their competitiveness by easing the measures of doing business and by attracting investment across sectors. At the core of all these is trade facilitation, along with other improvements in structural and policy measures. This article comprehensively examines India’s trade facilitation measures so far and their effectiveness and future steps.
Firms Responsive Behaviours in WTO Trade Disputes: Countervailing Cases on Korean DRAMs
Authors: Shin Wonkyu , Ahn Dukgeun
Published: April 2022

How do decisions of the World Trade Organization (WTO) Dispute Settlement Body (DSB) relate to economic/trade gains? This is an important question to consider when evaluating the efficacy of the WTO DSB. Although it may seem obvious that a successful dispute resolution through the DSB would remove trade barriers and increase trade, the ruling effects are not so straightforward, with recent empirical studies suggesting an unclear causality between the dispute resolutions and subsequent changes in trade.

Using product and firm-level data, this article examines three WTO disputes over countervailing duties on Korean Dynamic Random Access Memory chips, which have raised similar legal issues but yielded different outcomes. By investigating the dynamics of firm behaviour over the course of disputes, our analysis sheds light on the difficulties of detecting changes in trade flows following rulings by the DSB. We conclude that cross-border trade flows are substantially affected by firm-and-market specific adjustments interacting with the current world trade environment, such as flexible reallocation of resources and promotion of a production network.
EU-Russian Gas Trade and the Shortcomings of International Law
Authors: Lembo Carolina , Austvik Ole Gunnar
Published: April 2022

This article studies the impacts of international law on the political manoeuvring rooms for Russia and the EU in the natural gas sector. Russian energy policy, with its long tradition of strong state control, conflicts with the EU, which represents a far more liberal economic ideology, both in terms of for whom policy should work and how it should be performed. Legally, natural resources are not widely regulated. In this void, while both sides pressure legal cases to make or prevent, respectively, Russia moving towards a Western-styled policy, the private sector provides solutions for specific cases in which state action is insufficient or non-existent. The article asks to which extent Russia, pressured by international law, eventually will adopt an energy policy aligned to the West. It concludes that Russia’s steps towards greater economic integration with the outside world leads to greater similarities with the West in legal forms and processes. However, path-dependencies dominating society and politics, and the particularities of the energy industry, indicate that domestic Russian energy policy and external gas export policy may not necessarily lead to the same degree of similarity in actual political content, and, hence, real political convergence with the West.
Retreat from Harmonization: Trade Uncertainties Arising from Divergent Maximum Residue Limits for Pesticides
Authors: McConnell Alyse , Yeung May T. , Coomber Blair , Lantz Matthew
Published: April 2022

Maximum Residue Limits (MRL) for pesticides are used in the regulation of imports of agri-food products. Pesticide use is essentially universal in conventional agricultural production globally. The Codex establishes MRLs for various pesticides. In the 1990s there was de facto harmonization of MRLs based on Codex or, absent an international standard, importer acceptance of the exporter’s MRL. Since that time many countries have been establishing nationally based MRLs, leading to asynchronous regulations that act as trade barriers. This trend is particularly disturbing given the important role international trade in agri-food products is expected to play in meeting the food security challenges associated with feeding a global population predicted to reach 9 billion by 2050. This article explores the reasons for the increasing divergence in MRLs and its trade impacts, outlines the food security concerns arising from this increasing non-tariff barrier and examines multilateral, regional and national efforts to foster MRL harmonization and counter the trend to nationally based MRLs.
Liberalizing Global Trade in Mode 5 Services: How Much Is It Worth?
Authors: Cernat Lucian , Antimiani Alessandro
Published: April 2022

The growing role of services inputs in manufacturing exports (‘services in boxes’) has led to a proposal for a new modality of exporting services (mode 5 services) beyond the four modes of supply in the General Agreement on Trade in Services (GATS). For the vast majority of WTO members the significance of mode 5 services is considerable, both in exports and imports. However unlike traditional GATS services trade, mode 5 services ‘in boxes’ pay tariffs.

This article estimates that the global GDP gains from liberalizing mode 5 services at multilateral level could reach up to EUR 300 billion by 2025 and world trade could increase by over EUR 500 billion. The article also examines the interplay between mode 5 services trade and the growing importance of future technological developments (e.g. software, digitalization, the Internet of Things).

Our preliminary set of results shows that a Mode 5 Services Initiative is important not only because of the positive impact it would have on global trade flows but also because it would facilitate trade-led technological progress in all regions of the world.
Copyright Anti-Circumvention & Free Trade
Authors: Guan Wenwei
Published: April 2022

The article examines the contrasting implementation of Intellectual Property Organization (WIPO) Internet Treaties’ anti-circumvention obligation and its free trade implications. While the US Digital Millennium Copyright Act (DMCA)’s implementation established a brand new exclusive right of access control for rightholders, the EU’s InfoSoc Directive attempted to balance rightholder’s access control with interests of fair use beneficiaries. Examination of copyright’s private right nature shows access control in anti-circumvention finds no support from traditional theory, and actually turns copyright into a negative right in rem. Further examination on copyright limitations and exceptions shows that the anti-circumvention mechanism sits right at the centre of the dynamics between the idea-expression dichotomy, and the tension between rights and obligations. Critical examination of the circumstances of treaty conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Internet Treaties respectively shows that neither framework’s settlements have successfully balanced rights and obligations, or private rights and public access. New development of regional trade fragmentation from Trans-Pacific Partnership (TPP), to the Anti-Counterfeiting Trade Agreement (ACTA), to the Regional Comprehensive Economic Partnership (RCEP), brings the anti-circumvention diversity further into a terrain of uncertainty. The article concludes with a call for attention to access control’s negative impact on public information access and the balance of rights and obligations.
Treatment of SPS Technical Co-Operation under ASEANs RTAs: Toward an Empowerment of Human Dignity?
Authors: Wongkaew Thitirat
Published: April 2022

This article aims to review technical co-operation provisions related to sanitary and phytosanitary (SPS) matters in the ASEAN Member States’ regional trade agreements (RTAs). Such provisions could be used not only to deepen commitments under the World Trade Organization, but also promote capacity building and accelerate the granting of SPS technical assistance at national and regional levels, especially when their scope of application gives sufficient room for implementation and enables close collaboration between ASEAN and other actors such as the international standard-setting bodies. From the ‘policy-oriented jurisprudence’ perspective, the article sheds some light on understated potentials of such provisions to promote human dignity. Based on an empirical analysis, it also highlights different features of the provisions likely to ensure that SPS decision-making processes yield appropriate results, pursuing both ‘special interests’ of ASEAN such as the enhancement of policy quality and credibility and ‘common interests’ of the international community in the agri-food trade field.
Reassessing the Green in NAFTA
Authors: Allen Linda J.
Published: April 2022

The North American Free Trade Agreement (NAFTA) was the first trade agreement to explicitly link trade policy with environmental protection goals to ensure that liberalized trade did not result in increased environmental degradation. The environmental policies developed for NAFTA were predominantly concerned with addressing hypothetical concerns such as industry flight, pollution havens, downward harmonization, and conflicts between environmental laws and trade regime rules. These policies have endured and served as the template for subsequent US trade agreements. Twenty-five years on, however, research has shown that the actual effects of trade liberalization on the environment are not as drastic or far-reaching as originally thought. Thus, the inclusion of extensive environmental policies within trade agreements in general, and NAFTA in particular, may no longer be justified. Rather, there is a need to update the policy framework for NAFTA to focus on building the institutional capacity of its trading partners where it is most needed in conjunction with the inclusion of a small set of core environmental policies focused on a conflict of rules.
Brexit from a WTO/GATS Perspective: Towards an Easy Divorce?
Authors: Adlung Rudolf
Published: April 2022

Virtually all studies dealing with the WTO-related aspects of Brexit, the United Kingdom’s (UK’s) envisaged separation from the European Union, tend to focus on the ramifications for merchandise trade. Services trade rarely enters the picture, reflecting an apparently prevailing view that the reallocation of the existing pre-Brexit obligations requires little more than some drafting changes. This article begs to disagree, arguing that there are a variety of complex legal issues involved. These are related, inter alia, to the conceptual broadening of the General Agreement on Trade in Services (GATS) beyond conventional cross-border trade to three more types of transaction and its extension, in addition to the treatment of products (services), to that of producers (service suppliers). The competitive conditions of foreign producers that are established within a Member’s territory are thus covered by the Agreement. With this in view, the article points out scenarios under which these producers are adversely affected by the termination of the UK’s single-market status and the ensuing (re-)introduction of restrictions on market access and national treatment under GATS Articles XVI and XVII and/or the (re-)appearance of regulatory impediments in bilateral trade. In turn, this might provide a basis for the home countries to seek compensation. The article also identifies GATS-scheduled limitations that, because of the Most-favoured-Nation principle, cannot be maintained in trade among independent WTO Members. Depending on their nature, the resulting adjustments might lead to compensation claims as well.
Capacity Constraint: A Fundamental Perspective for the Development Issue at WTO
Authors: Xiangchen Zhang , Jinyong Wang
Published: April 2022

The development issue at WTO, which has generated heated academic and policy debates, is an integral part of the multilateral trade negotiations, with the special and differential treatment (S&DT) for developing countries being at the core. This article seeks to, by introducing certain theoretical analysis framework – such as the theory of ‘incomplete contract’ and ‘poverty as capability deprivation’ – into the multilateral trade negotiations, conclude that the fundamental aspect of the development issue at WTO is the capacity constraint of developing countries: the insufficient capacity limits the extent of their capability to negotiate internationally as well as to transform the negotiated outcomes into domestic economic development. Reviewing the capacity constraint and an array of economic and social indicators, it argues that China is still a developing country. Further, one of the important aspects for the multilateral trade negotiations on development lies in abridging the ‘rules deficit’, focusing on empowering and strengthening endogenous capabilities of developing countries. Meanwhile, the capacity constraint of developing countries stems from the past negotiations of multilateral trade rules and is reflected in the implementation of those rules, i.e., to transform multilateral trade rules into domestic laws and regulations, and further convert such capacity into a driving force and endogenous engine for domestic economic and social development. Thereafter, in the multilateral trade negotiations, developing countries may, on a voluntary basis, duly contribute according to their capacity to do so, which may be the way out for development negotiations at WTO.
The Return of Voluntary Export Restraints? How WTO Law Regulates (And Doesnt Regulate) Bilateral Trade-Restrictive Agreements
Authors: Vidigal Geraldo
Published: April 2022

In recent trade negotiations, WTO Members have consented to limit rather than promote trade between the parties, bringing back the spectre of ‘voluntary export restraints’, a widespread practice of the 1980s that was outlawed in the Uruguay Round Agreements. This article discusses the ways in which WTO law regulates, and does not regulate, agreements between WTO Members to limit parties’ rights under WTO law (‘WTOminus’). While WTO-minus provisions in bilateral agreements are able to influence WTO law only under very specific circumstances, the design of WTO dispute settlement is such that measures based on WTO-minus arrangements may remain unopposed for long periods of time. If trade-restrictive measures are challenged, WTO-minus provisions are unlikely to serve as a defence before WTO adjudicators.
When the Going Gets Tough, the Tough Get Going: Advancing Development Through Governance Indicators at the WTO
Authors: Sánchez Miranda Manuel
Published: April 2022

This article argues that, similar to the World Bank and other global economic affairs institutions, the time has come for the World Trade Organization (WTO) to devise governance indicators to advance economic development. This would change the topography of global trade governance in such a way that it would shift the responsibility on Members to design policies that can enable them reap more benefits from trade, as well as to adopt truly inclusive trade policies. Not only could this help silence the serious criticism, particularly from the developed world, that has called into question the role of trade as a tool for advancing development, but it would also be consistent with the treaty-based development goals that are enshrined in the WTO treaty. In parallel, through the use of indicators, the WTO would be able to address the negative effects of automation and disruptive technologies, by providing a measurement of the extent to which such externalities are offsetting the benefits that should otherwise be attributed to trade liberalization. The WTO has already given signals of its openness to create indicators and that its Secretariat counts with the technical capacity to build complex soft law mechanisms even if the necessary data to build the same implies stepping out of the WTO system.
Towards a Mega-Plurilateral Dispute Settlement Mechanism for the WTO?
Authors: Kong Qingjiang , Guo Shuai
Published: April 2022

The Dispute Settlement Mechanism (DSM) of the World Trade Organization (WTO) is facing the critical impasse, i.e., of the blockage of appointment of the Appellate Body (AB) members by the United States (US), which would impede its normal functioning in the foreseeable future. To address this imminent issue, this article proposes establishing within the WTO a mega-plurilateral dispute settlement mechanism in which the original Members of the WTO may choose not to participate. This new mechanism would resemble every other aspect of the current DSM. It should be noted the impasse needs to be addressed within a short period of time and this article highly advocates an earlier renegotiation of this new plurilateral dispute settlement agracceement.
Appellate Body Held Hostage: Is Judicial Activism at Fair Trial?
Authors: Bahri Amrita
Published: April 2022

The World Trade Organization (WTO) Dispute Settlement System (DSS) is in peril. The Appellate Body (AB) is being held as a ‘hostage’ by the very architect and the most frequent user of WTO DSS, the United States of America. This will bring the whole DSS to a standstill as the inability of AB to review the appeals will have a kill-off effect on the binding value of Panel rulings. If the most celebrated DSS collapses, the members would not be able to enforce their WTO rights. The WTO-inconsistent practices and violations would increase and remain unchallenged. The rights without remedies would soon lose their charm, and we might witness a higher and faster drift away from multilateral trade regulation. This is a grave situation. This piece is an academic attempt to analyse and diffuse the key points of criticism against AB. A comprehensive assessment of reasons behind this criticism could be a starting point to resolve this gridlock. The first part of this Article investigates the reasons and motivations of the US behind these actions as we cannot address the problems without understanding them in a comprehensive manner. The second part looks at this issue from a systemic angle as it seeks to address the debate on whether WTO resembles common or civil law, as most of the criticism directed towards judicial activism and overreach is ‘much ado about nothing’. The concluding part of this piece briefly looks at the proposals already made by scholars to resolve this deadlock, and it leaves the readers with a fresh proposal to deliberate upon.
Digital Trade in EU FTAs: Are EU FTAs Allowing Cross Border Digital Trade to Reach Its Full Potential?
Authors: Micallef Jan A.
Published: April 2022

Digital trade has been increasing in importance as the ways of conducting trade have advanced in tandem with technological progress. In view of the EU’s recent successes in negotiating trade agreements with third countries the question arises as to whether EU Free Trade Agreements (FTAs) cater for digital trade in a way that allows it to reach its full potential. This article attempts to reply to this question by evaluating how digital trade has been tackled in a holistic manner in the EU’s FTAs from the EU-Korea FTA onwards. The results show that even though a lot of progress was made, there is still more to be done. The article identifies the most urgent issue as being that of having trade agreements cater for allowing efficient cross border data flows between the parties to the agreement. It subsequently proposes a next step that could be taken in order to address this issue in a realistic manner taking into consideration the value of data protection.
New Features of Green Industrial Policy and the Limits of WTO Rules: What Options for the Twenty-first Century?
Authors: Espa Ilaria
Published: April 2022

This article dissects the distinctive features of twenty-first century green industrial policy and discusses its implications for the World Trade Organization (WTO) system. Focusing on the renewable energy (RE) sector, it submits that both RE subsidies and trade remedies targeting RE technologies have been used as green industrial policy instruments albeit the latter have largely escaped WTO scrutiny so far. After critically assessing the interplay between the ‘green’ and the ‘industrial’ components of both types of measures, this article gives an explanation for the actual trends in WTO RE-related disputes and concludes that, contrary to conventional wisdom, the rise of green industry policy does not as much confront the WTO system with the problem of reserving more policy space that it is currently available for good (‘green’) RE subsidies, but rather with the problem of eroding the larger than optimal policy space that currently exists for bad (‘industrial’) trade remedies targeting RE technologies. Building on this, this article critically assesses the existing calls for reform of WTO rules from a trade and climate change standpoint and advocates for solutions à géometrie variable that could allow for addressing the main shortcomings of both the WTO Agreement on Subsidies and Countervailing Measures and the WTO Anti-dumping Agreement.
‘E-commerce’ for India in a Developing World: An Int’l Trade Law Perspective
Authors: Tiwari Saurabh , Chandra Ashish , Praveen Tanvi , Toshi Stuti
Published: April 2022

Ever since internet has stepped in the domain of markets, the style of conducting commercial transactions has changed. E-Commerce transactions are very different from the everyday buying at the store transactions and they are gaining more significance by the day. Due to the everevolving technology driven nature of these e-markets, regulators across the globe are exploring ways to discipline them without causing much distortions. However, the job is more complicated than it appears. In these circumstances, while India is in the phase of drafting its National ECommerce Policy, its international forefront reflects carefulness in engaging in the ongoing negotiations. This article aims to explore the complexity of e-commerce from the international trade forefront and its implications for developing countries like India.

International Trade, Electronic Commerce, E-Commerce, Regulation, Developing Countries, Role of Regulators, Competition, Digital Trade.
Technology Transfer Under China’s Foreign Investment Regime: Does the WTO Provide a Solution?
Authors: Kong Qingjiang , Zhou Weihuan , Jiang Huiqin
Published: April 2022

One of the most longstanding and significant issues in the US-China trade war and international trade regulation in general has been the so-called ‘forced’ technology transfer. To contribute to the ongoing debate over this issue, this article reviews the role of technology transfer in the evolution of China’s foreign direct investment (‘FDI’) regime over the past four decades and shows that the use of foreign investment to promote diffusion of advanced technology and knowhow in the Chinese economy has long been rooted in the heart of China’s FDI policy and remains fundamental for China’s transformation to an innovative economy. This pursuit of economic upgrade and technological advancement is not illegitimate as it is common for countries to use similar policies for similar objectives at different stages of economic development. The question is whether China has done so in breach of its WTO obligations. To answer this question, this article examines China’s new FDI regime and argues that while China has removed the controversial provisions in the relevant legislations, the regime leaves flexibility for China to ‘force’ technology transfer in practice, particularly under the security review and retaliation mechanisms envisaged in the new Foreign Investment Law (FIL). It is submitted that the best way to address these outstanding challenges would be through the dispute settlement mechanism (DSM) of the WTO as opposed to unilateral and confrontational approaches which have proven to be counter-productive. While WTO litigation is likely to be limited to ‘as applied’ claims in specific cases, systemic changes may result from a series of successful ‘piecemeal’ attacks over time. Given China’s broad WTO commitments on technology transfer, we call for an increasing use of the existing rules to address any laws and practices that ‘force’ technology transfer instead of negotiating new rules.

Technology Transfer, China, Foreign Investment Law, National Security, WTO, Accession Protocol, US-China Trade War
A New Trade Regime for the Servitization of Manufacturing: Rethinking the Goods-Services Dichotomy
Authors: Peng Shin-yi
Published: April 2022

Moving toward the age of industry 4.0, the increasing complementarities between goods and services lead to questions regarding how the divided trade rules for goods and services will be applied. How does the servitization of manufacturing render such divides problematic? How can we determine the nature of a regulation when the measures in a dispute are components of a complex regulatory landscape? Is there a need to break down goods/services legal silos? If so, how do we treat goods and services together? This article expands upon the existing assertions from various angles, and in particular, the increasingly ‘dual nature’ of domestic regulations brought about by technological developments, as well as systematic problems related to the concurrent application of the goods/services trade rules. Just as the regulatory developments toward goods/services converge in many areas of law, international economic law (IEL) is now faced with challenges in surviving the myth of the goods/services dichotomy. Evidently, silo-based systems trigger a great level of legal uncertainty and inconsistency in the application of trade rules. The final part of this article further explores the ‘mission impossible’ migration to a new trade regime. There are positive lessons to be learned in terms of the convergence of goods/services governance from the experiences of the Regional Trade Agreements (RTAs). Political interest in moving away from the increasingly outmoded vertical silos, in placing trade policy on a more sure empirical footing, and in establishing a new overarching trading paradigm may increase over time.

Servitization, Industry 4.0, Goods-Services Dichotomy, Goods-Services Convergence, Dual Nature, Hybrid Measures, Domestic Regulation, Legal Silos.
Reforming WTO Subsidy Rules: Past Experiences and Prospects
Authors: Li Siqi , Tu Xinquan
Published: April 2022

Subsidies are a critical instrument in the toolbox that national governments use to address market failures and achieve a variety of policy goals. However, critics often arise to point out the inefficiencies and economic distortions that subsidies create, which raise the question of whether the existing WTO subsidy rules are adequate, and how to reshape WTO subsidy rules to address new emerging concerns especially in a global value-chain world. This article first reviews WTO Members’ subsidy-related proposals under the Doha Development Agenda and then addresses key concerns on subsidy rules in the current broader discussion of the WTO reform, trying to figure out feasible approaches toward shaping a ‘new generation’ of subsidy rules under the aegis of the WTO.
Can the WEF Re-Connect the WTO to the Global Business Community?
Authors: Al Kanawati Nadja , Perera Nishadee
Published: April 2022

As the World Trade Organization (‘WTO’) faces what may be an existential crisis and considers options for structural reform, a fundamental issue it needs to examine is maintaining its relevance for the business community. Recognizing that businesses are a key stakeholder in the system of global trade, one aspect of ensuring this relevance is continued and improved engagement with the business community. This article explores and recommends one possibility for such engagement: utilization of the World Economic Forum (‘WEF’).

The WEF prides itself on thorough stakeholder engagement, and arguably provides a more holistic representation of business community views. Although limitations to this notion are considered in the article, it is ultimately argued that the WTO should consult the WEF more regularly regarding matters of international trade regulation policy. In doing so, the WTO would be taking advantage of the WEF’s expertise, its existing investment into research and collaboration with major corporations, academics and government officials, as well as its unique structure that allows it to consider upcoming issues in an agile and adaptable manner. After considering stakeholder engagement structures in other fora, this article recommends an institutionalized mechanism to ensure repeated, systematic collaboration and accountability between the WTO and the WEF.

World Trade Organization, WTO, World Economic Forum, WEF, business community, stakeholder engagement, institutional change, collaboration, reform
EU Trade Agreements: To Mix or Not to Mix, That Is the Question
Authors: Puccio Laura , Conconi Paola , Herghelegiu Cristina
Published: April 2022

The European Union (EU) can only act internationally on competences that have been transferred to it by its Member States. Trade agreements negotiated by the EU that include provisions outside its exclusive competences should be concluded as ‘mixed’. Mixed trade agreements must be ratified following not only the procedures set out in the EU treaties, but also the national ratification procedures of the Member States. As a result, national or even regional parliaments may block trade deals agreed between the EU and its trading partners after years of negotiations. Should the EU then avoid negotiating mixed trade agreements? We argue that the answer to this question depends crucially on the objectives of the EU when negotiating with its trading partners. If the EU is mostly driven by market-access motives, it should restrict the agreement to policy areas under its exclusive competence, thus insulating the trade deal from the legal and political risks of mixity. When instead its motives are mostly political, mixity is a ‘necessary evil’ to achieve non-trade objectives.

Trade Agreements, European Unity, Competences, Ratification Procedures
Facilitating Sustainable FDI for Sustainable Development in a WTO Investment Facilitation Framework: Four Concrete Proposals
Authors: Sauvat Karl P. , Gabor Evan
Published: April 2022

Foreign direct investment (‘FDI’) can be an important vehicle for development. However, in recent years, the focus has not just been on development generally, but sustainable development specifically. Thus, this article focuses on how countries can increase levels of FDI geared toward projects likely to contribute as much as possible to countries’ sustainable development—in other words, how countries can increase flows of sustainable FDI. To that end, and in light of the World Trade Organization’s ongoing Structured Discussions on Investment Facilitation for Development, this article first discusses the notion of ‘sustainable FDI’ and then outlines four issues and related concrete proposals whose implementation through an investment facilitation framework for development would help to ensure that commercially viable FDI makes a besteffort contribution to sustainable development: (1) How can governments encourage sustainable FDI? (2) How can governments promote corporate social responsibility (‘CSR’)? (3) How can one create the special category of ‘Recognized Sustainable Investor’ to incentivize international investors to implement their CSR commitments and engage in sustainable FDI? (4) What role can home countries play in facilitating outward FDI flows, especially the flow of sustainable FDI? Looking at the question of a multilateral framework from the perspective of its objective— namely ‘for development’—is particularly important as this objective should guide the negotiations of such a framework.

sustainable FDI, sustainable development, WTO investment facilitation discussions, corporate social responsibility, home country policies, recognized sustainable investor
One Stone, Two Birds: Can China Leverage WTO Accession to Build the BRI?
Authors: Chaisse Julien , Kirkwood Jamieson
Published: April 2022

The efficacy of the World Trade Organization (WTO), as an international forum seeking to provide a uniform platform to Member States for bilateral and multilateral negotiations and further the spirit of a new international economic legal order, is challenged constantly. This article explains how China is using the WTO accession process to leverage its domestic interests towards the Belt & Road Initiative (BRI) to obtain greater commitments from existing and potential BRI nations. It is shown that after the BRI’s official establishment in 2013, China’s trade commitments from potential accession countries are becoming more pronounced, with increasing and sometimes onerous expectations of the acceding countries, due to the lack of any standard format for bilateral accession protocols. WTO law is increasingly part of BRI hard law governance practices, suggesting encroachment of BRI disputes within the WTO dispute settlement framework to establish a novel approach to dispute resolution. Since rules-based trade practices are needed, Member States should not adopt accession protocols that are either too rigid or too flexible, thereby creating glaring loopholes to be misused. WTO’s overall objective of furthering trade liberalization can be achieved only by keeping track of techniques adopted by developed countries when negotiating with developing and least developed countries such that potential members are not discouraged from joining the new economic order from the outset.

BRI, Belt and Road Initiative, WTO, accession, SCM agreement, subsidies, services, telecommunications, trade-related investment measures, LDC Guidelines
Export Controls on COVID-19 Vaccines: Has the EU Opened Pandora’s Box?
Authors: Evenett Simon J.
Published: April 2022

On 30 January 2021 an export authorization regime for COVID-19 vaccines came into effect for shipments from the European Union. While some contend covert export curbs on COVID- 19 vaccines predated this move, the EU’s export authorization regime – which includes provision to prohibit export of vaccine – was the first overt control regime introduced on such vaccines since the beginning of the COVID-19 pandemic. To some observers this step by the European Union confirmed fears that Vaccine Nationalism would disrupt the equitable and efficient distribution of vaccines necessary. While such legitimate global public health concerns provide important context, the purpose of this article is to examine in detail the contents of the European Commission’s implementing regulation for this export authorization regime. Seven grounds are found for concern by the European Union’s trading partners. Having established such cause for concern, the article then lays out five ways in which those trading partners might react, bearing in mind that different trading partners face different circumstances and may respond in different ways. The potential for direct retaliation within the COVID-19 vaccine supply chain is explored as well as cross-retaliation for trade in essential goods and against the affiliates of European Union affiliates located abroad.

COVID-19, Coronavirus, pandemic, vaccines, vaccine nationalism, European Union, export control, public health, supply chain, retaliation
Restrictions on Trade in Telecommunications: WTO’s Cybersecurity Conundrum
Authors: Akcali Gur Berna
Published: April 2022

This article examines the role of the World Trade Organization (WTO) in balancing the nexus among a rule-based multilateral trade system, national security, and cybersecurity. It presents a historical account of restrictions placed on the telecommunications trade over national security concerns and focuses on the significant political risks thereof for the WTO if these restrictions are challenged at its dispute settlement system. An analysis based on the WTO Panel rulings in ‘Russia – Traffic in Transit’ and ‘Saudi Arabia – Protection of IPRs’ is revealing in this context. It shows that, despite the obvious cybersecurity concerns, the invocation of the national security exception is not straightforward. The turn to power politics and regionalism highlights the significance of multilateral organizations that provide a more inclusive structure to reflect and protect the interests of all their members, not just those that hold positions of power and control. As long as the stalemate at organizations such as the United Nations (UN) and the International Telecommunication Union (ITU) continues, despite the need for a more legitimate, inclusive multilateral framework, the expectation of a ruling on trade-related aspects of cybersecurity will place an unnecessary burden on the WTO dispute settlement system.

Cybersecurity, World Trade Organization, National Security Exception, Telecommunications, Multilateralism, Regionalism, Geopolitics
United States Special 301 – A Deeply Flawed Tool for IPR Regulation?
Authors: Qureshi Asif H.
Published: April 2022

In this article an International Law and policy perspective is applied to the US Special 301 approach to the management of intellectual property rights of foreign States – with emphasis on the pharmaceutical sector and transfer of technology against the backdrop of US China trade tensions. In particular, the article draws upon the US Special 301 Reports between 2018 to 2020. The paper sets out to take a critical stance of Special 301. This evaluation is intended to equip in particular those who are at the receiving end of the Special 301mechanism. The paper concludes that Special 301 is lacking in informed, expert and empirically based inputs. Above all it lends itself to being hijacked by the narrow agenda of the executive without adequate international, constitutional and due process safeguards for those it is targeted at.

US Special 301, Intellectual Property, WTO, Technology Transfer, Pharmaceuticals, TRIPS, China, International Law, Due Process
On Trade Liberalization for Political Ends: The Case of the EAEU
Authors: Marrella Fabrizio , Usmanov Rafik Khammatovic , Barbirotto Patricio Ignacio
Published: April 2022

As evidenced by WTO theory and practice, even as exceptions regulated at Article XXIV GATT 1994 and Article V GATS, regional trade agreements (RTAs) or preferential trade agreements are an important legal tool to liberalize trade and strengthen economic or political cooperation. In recent years, notwithstanding the fiasco of TTIP and TPP, RTAs have proliferated in different regions of the world. Among them, the Eurasian Economic Union (EAEU) is a customs union established in 2015 which is institutionally similar to the European Union (EU) albeit unexplored in academic literature. Remarkably, during its first five years of existence as an international organization, the EAEU has become a trade entity capable of adopting common technical regulations and a uniform customs code regulating cross-border trade in the internal single market and with third parties. Moreover, the EAEU has been quite active in concluding international agreements with third States, setting the basis to make the EAEU a key player on the global arena. Is the EAEU an RTA with the purpose to liberalize trade and services, mindful of the WTO philosophy, or rather is it a mean to attract back in the Moscow’s orbit some of the Post-Soviet States thus reaching precise geopolitical ends? What is its relevance for international business?

Regional Trade Agreements, International Economic Law, Eurasian Economic Union, WTO, International Economic Organizations, Post-Soviet States, EAEU Customs Code, Russia, Common Market
Appellate Body Crisis at the World Trade Organization: View from India
Authors: Raj Vishakha , Mohan M. P. Ram
Published: April 2022

There has been a crisis prevailing at the Appellate Body of the World Trade Organization (WTO) since December 2019. The United States’ (US) refusal to allow the appointment of members to the WTO’s Appellate Body has disturbed the functioning of the entire WTO dispute settlement process. In order to mitigate the effects of this, the European Union (EU) has proposed a multi-party interim appeal arbitration agreement (MPIA) which has been joined by over twenty other WTO members. In the absence of rules-based dispute settlement, countries will most probably resort to bilateral negotiations. This will be prejudicial to the interests of developing countries that have consistently been disadvantaged during bilateral negotiations and fared better in proceedings with third-party adjudication. Though India has expressed concerns about the Appellate Body crisis, it has not joined the MPIA and has stated that it does not intend to do so either. This article explains why India would benefit from joining the MPIA especially given the disputes it has pending before WTO Panels. Joining the MPIA will help India avoid unilateral sanctions at the first instance and increase the likelihood of compliance by other WTO members that are a part of the MPIA.

WTO, Appellate Body, India, dispute settlement, multilateralism, United States, European Union
When International Trade Law Meets Tax Policy: The Example of Digital Services Taxes
Authors: Pirlot Alice , Culot Henri
Published: April 2022

With the rise of digital services taxes (DSTs) all over the world, questions have arisen regarding their compatibility with international trade law. Between 2019 and 2021, the United States initiated investigations into several DSTs and published observations on the DSTs adopted by Austria, France, Italy, India, Spain, Turkey and the United Kingdom. In addition to the argument that these taxes violate international tax principles, the US considers that they are discriminatory. This article uses this claim as a basis to analyse the likelihood for DSTs to be incompatible with World Trade Organization (WTO) law. First, it provides an overview of the unilateral, regional and multilateral tax proposals to mitigate the challenges of the digitalized economy. Second, it discusses the main legal issues that could arise under the law of the WTO, focusing on legal issues under the General Agreement on Trade in Services (GATS). While recognising that there may be good tax policy reasons to oppose DSTs, this article concludes that arguments based on WTO law provide, if at all, a weak justification to oppose such taxes.

Digital Service Taxes (DST), GATS, Unilateral taxes, Digitalized economy, Destinationbased taxes, National treatment, Most-favoured-nation principle, Non-discrimination of services and service providers
The Issue of Non-market Economy Status in China’s Anti-dumping Investigations Against Imports: A Development for the Implementation of New Rules or A Balancing Strategy?
Authors: Yu Yanning
Published: April 2022

This article addresses China’s recent practices regarding the issue of non-market economy (NME) status in anti-dumping investigations against imports. The article uses the latest developments to analyse and examine two important questions. One question is whether China’s practices are justified under the World Trade Organization (WTO)’s rules and its domestic anti-dumping rules, and the other question is whether China’s new practices are merely a strategy for balancing various increasingly unresolved allegations against Chinese exporters abroad. Part 2 outlines the background of China’s recent investigations and key rulings on China’s practices regarding the issue of NME status. Part 3 then discusses the two aforementioned questions by analysing the detailed issues embedded in the rulings. Part 4 makes some concluding remarks.

China’s anti-dumping investigations, NME status, WTO ADA, PMS, NME investigations, NME rulings
International Competitiveness and Resource Rents—Insights from the Canada–U.S. Softwood Lumber Dispute
Authors: Cullen S.E.
Published: April 2022

“Corn is not high because a rent is paid, but a rent is paid because corn is high; and it has been justly observed that no reduction would take place in the price of corn although landlords should forego the whole of their rent”.

David Ricardo, 1917
State Aid in the Framework of the EU Position after Kyoto: An Analysis of Allowances Granted under the CO2 Emissions Allowance Trading Directive
Authors: Merola Massimo , Crichlow Gloria
Published: April 2022

This article examines the Community ``cap and trade'' system for greenhouse gas emissions allowance trading established under Directive 2003/87/EC from the perspective of the EC State aid rules. The scheme, which commences in 2005, will cover only CO2 emissions and initially, is limited to certain sectors. Each Member State must draw up a National Allocation Plan (NAP) to be notified to the European Commission, indicating how it proposes to allocate allowances to individual operators. It is foreseeable that Member States will have difficulties determining what constitutes aid and what are consistent and inconsistent forms of aid when drafting NAPs. It will be particularly difficult to assess whether an advantage is granted which favours certain undertakings or activities using State resources. The article points out pitfalls for Member States to avoid if NAPs are not to fall within the scope of Article 87(1) EC Treaty and eventual derogations under Article 87(3). It examines the impact of the scheme from the standpoint of companies and the choices open to them: limit output, invest in environmentally friendly technology capable of reducing emissions, purchase the allowances on the market or pay the penalty for not reducing emissions.
The Reform of European Merger Control: Quid Novi Sub Sole?
Authors: González-Díaz Francisco Enrique
Published: April 2022

In this article the author describes and discusses some aspects of the European merger control reform. The article first briefly outlines the main legislative and non-legislative measures integrating the merger control reform package. It then analyses the major changes introduced by this reform in three fields: jurisdiction, substance and procedure. As regards jurisdiction, the author focuses mostly on the newly introduced system of ``streamlined referrals''. The article gives an overview of the new system of referrals and analyses whether this system will bring about the results it is expected to achieve. As regards substance, the article first briefly discusses the background to the change in the substantive test to be applied by the European Commission in its assessment of mergers. It then analyses whether the substantive test as adopted in the New EC Merger Regulation will bring about a fundamental lowering in the level of intervention in merger cases. The author further identifies some of the hurdles associated with a more systematic use of efficiency-related arguments in merger analysis. As regards procedure, the article first briefly explains the background to the changes and gives an overview of its most relevant features. The author then gives his views on these procedural changes and considers whether they constitute an appropriate answer to the criticisms levelled against the Commission's prior practice in this area.