bluuebunny/crossref_metadata_2025 huggingface dataset:
Wage Theft in a Recession: Unemployment, Labour Violations, and Enforcement Strategies for Difficult Times
Authors: Fine Janice , J. Galvin Daniel , Round Jenn , Shepherd Hana
Published: April 2022

During the Covid-19 pandemic and accompanying recession, millions of low-wage workers have become increasingly vulnerable to exploitation. Limited scholarly attention, however, has been paid to the relationship between rising unemployment, labour standards violations, and government enforcement capacities during periods of economic recession. In this article, we begin to draw out these connections. First, we turn to the case of the Great Recession of 2008-2010 in the United States to examine the relationship between rising unemployment and minimum wage violations, using Current Population Survey (CPS) data to estimate minimum wage violation rates by industry and demographic group. We find that minimum wage violations rose in tandem with rising unemployment, and were shouldered by some groups of low-wage workers more than others, and that they were unexpectedly affected certain industries more than others. We then use an analysis of internal complaint data filed with the San Francisco Office of Labour Standards Enforcement (OLSE) to illustrate that even during non-recession periods, the number of complaints received by industry are in some cases wildly disproportionate to the estimated violation rates by industry. This underscores the shortcomings of the complaint-based enforcement model, which is by far the most common mode of workplace regulation in the United States. Finally, we discuss how this empirical evidence points to the importance of developing alternatives to complaint-based models of enforcement – in particular, strategic enforcement and co-enforcement – especially during periods of high unemployment.

Strategic Enforcement, Co-Enforcement, Great Recession, Wage Theft, Minimum Wage Violations
Enforcement of Labour Law: The Case of Germany
Authors: Waas Bernd
Published: April 2022

The article explores the question of how labour law provisions are enforced in Germany. First, the central role of the labour courts is examined. In doing so, it not only looks at the constitutional foundations, but also at the special features of proceedings before the labour courts. Then the role of works councils in enforcing labour law is highlighted. The role of trade unions is also examined in more detail, showing in particular that some would like to see their importance in this area strengthened. Finally, the role of public authorities is examined.

Enforcement of Labour Law in Germany: The Role of the Courts, the Works Councils, Trade Unions and State Authorities. General Questions, Constitutional Directions, Specific Regulations, Legal Policy Debate
Compliance and Enforcement in Italian Labour Law
Authors: Del Punta Riccardo
Published: April 2022

This article examines the main compliance and enforcement techniques in Italian labour law. With regard to compliance techniques, three examples are examined: the sufficient wage, the vicarious liability rule in the case of outsourcing, and health and safety regulations in the light of the EU model. The importance of the strong presence of unions and workers’ representatives inside the workplace is also emphasized. The article then addresses the evolving role of the labour inspectorate in a modern enforcement perspective and the main rules and practices of courts dealing with employment matters, which traditionally play a crucial role in the Italian system.

Compliance Techniques – Unions’ Role – Enforcement – Labour Inspections – Labour Courts
Philip Pettit’s Republicanism and Labour Law: A Defence
Authors: McCormack-George Dáire
Published: April 2022

Republican political theory has attracted the attention of a number of prominent academic labour lawyers in recent years with a view to providing a general theoretical or philosophical foundation for labour law. Engaging with and contributing to this emerging area of scholarly interest, this article endeavours to defend the possibility of a general republican theory of labour law by relying on the writings of Philip Pettit. Contrary to the arguments of these scholars, the paper suggests that at least some important parts of labour law could be explained and justified in the light of this particular version of republicanism and it is possible that many other if not all areas could be justified in the future. As Pettit’s republicanism is a work in progress, so too is the explanation and justification of labour law in the light thereof.

Philosophy of Labour Law, Perfectionism, Consequentialism, Republicanism, Freedom as Non-Domination, Philip Pettit, Social Justice, Political Legitimacy, Sovereignty
The Case for Incorporating Scientists and Technicians into WTO Panels
Authors: Iynedjian Marc
Published: April 2022

So far, World Trade Organization (WTO) panels have been composed of trade diplomats, lawyers or economists. WTO trade disputes, including those raising complex scientific or technical questions, have thus been resolved by groups of persons skilled in law, politics or economics, but lacking expert knowledge in science or technology. This article aims at showing that WTO panels cannot, even with the support they get from the WTO Secretariat and outside experts, appropriately handle trade disputes, which are at the crossroads of law, science and technology. These disputes may —as, for example, illustrated by the Hormones, GMO and Asbestos cases— have far–reaching social and economic implications and can be the object of enormous public scrutiny. It is therefore paramount to the credibility of the WTO that they be properly dealt with. In this perspective, I propose that science and technology–related WTO disputes be adjudicated by panels comprising not only trade diplomats, lawyers or economists, but also scientists or technicians.
The Treatment of Profit in the Export Market in Antidumping Duty Proceedings
Authors: Kelly Brian
Published: April 2022

The General Agreement on Tariffs and Trade (GATT) Antidumping Code and US law and practice allow a seeming asymmetry in the antidumping calculation. While expenses in the domestic market result in adjustments based on the expense incurred, expenses in the export market may attract an element of profit. This results in a larger adjustment for export sales than for normal value, increasing antidumping duties relative to the case in which the adjustments are made symmetrically. This article appraises US policy both before and after the Uruguay Round Agreements Act using the off-cited “level playing field” rationale to determine whether the additional deduction for profit in the export market is compatible with that rationale. We conclude that US practice prior to the Uruguay Round in fact was largely compatible with the level playing field rationale, but the adoption of the more far-reaching profit calculation following the Uruguay Round has created a serious distortion in the antidumping calculation. Since US law and practice reflect the Antidumping Code in this respect, this problem may exist in the practices of other signatories as well.
Eco–labels and International Trade:Problems and Solutions
Authors: Smith Bob , Bonsi Richard , Hammett A.L.
Published: April 2022

Eco–labeling is one way to assure consumers of the environmental suitability of products they purchase. However, several arguments have evolved to show that the use of eco–labels poses barriers to international trade. This exploratory study seeks to determine whether or not the use of eco–labels is a barrier to international trade in reference to the World Trade Organization (WTO) and International Standards Organization (ISO) principles. Product related production processes and methods (PPMs) and non–product related production processes and methods (npr–PPMs) have been a major source of disagreement among researchers. Our study examined the ISO criteria for eco–labeling that demand that life–cycle assessment (LCA) including both PPMs and npr–PPMs be satisfied. One of the major problems uncovered is the difficulty in identifying corresponding environmental variables for LCA requirements since environmental conditions vary among countries. We provide some recommendations and conclude that eco–labeling is not intended to be a barrier to international trade provided that it is not advocated under the pretext of protectionism.
Negotiating Special and Differential Treatment from Doha to Post–Hong Kong: Can Poor People Still Benefit?
Authors: Senona Joseph M.
Published: April 2022

This exploratory article traverses the WTO negotiations on Special and differential treatment (S since 2001 and highlights the diffi culties encountered in the negotiations. The article then discusses and posits its views on the status quo thus attempting to evince that the differences underlying WTO Members’ positions are rooted in the history of S&D treatment and have to do with how to reformulate and improve the S&D principle within the WTO to adequately respond to the modern day developmental challenges. To that end, the article focuses on some of the systemic issues such as how to defi ne modern day “development” within the WTO, differentiation, eligibility and graduation. Finally, the article attempts to state the way forward which essentially calls for a two faced legally binding S&D treatment, that is, S&D treatment as a development and adjustment tool.
From Diplomatic – to Human Rights Protection: The Possessions under the 1950 European Human Rights Convention, First Additional Protocol Article 1
Authors: Orebech Peter Thomas
Published: April 2022

‘Possession’ as defined in The European Convention of Human Rights (ECHR), the First Additional Protocol (FAP) Article 1 resulting from judicial legislation incorporates not only the physical control of assets, but as well rights and benefi ts constituting assets, intellectual property, patrimonial rights, the “right to credit”, “VAT [value added tax] refund”, right to social security benefits, licenses etc. in respect of which the applicant can argue that he has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment. Clearly, economic rights of different kinds are now part of the human rights arena. A prediction is that a great variety of assets, shares, obligations, futures, factoring, etc. will in the future gain from not only diplomatic protection, but also from direct personal applicability of human rights. The human rights protection according to ECHR, FAP Article 1 – the rights of which should be practical and effective – sets forth a complicated, intertwined, three–step determinative process: (1)The principle of peaceful use of one’s possession[s], which requires the injured party to demonstrate that his interest qualifies as a ‘possession.’(2) A legally valid expropriation and state interference or intervention that turns into a deprivation when it exceeds a minimum level of intensity. In concreto the deprivation must be “in the public interest” and must have taken place “subject to the conditions provided for by law,” and by the “general principles of international law.” Illegal takings do not require a showing of formal, i.e. de jure expropriation. It is sufficient that a de facto deprivation affects the party’s peaceful enjoyment of his or her possessions in a manner that is equal to expropriation. (3) The deprivation must be carried out in the cause of public interest. To be justifi ed or legally justifiable, a deprivation should strike a “fair balance” between the demands of the general interest of the community and the state’s duty to protect the individual’s fundamental rights. If the agencies fail to conduct such a deliberation, the plaintiff has a solid claim. Where the government does not deliberate the merits of the conflicting community and individual claims, it has demonstrably never initiated the balancing process in the first place, which in and of it self breaches plaintiff’s human rights.
RTAs for Development: Utilizing Territoriality Principle Exemptions under Preferential Rules of Origin
Authors: Bum Kim Jong , Kim Joongi
Published: April 2022

This paper examines how preferential rules of origin that operate under Regional Trade Agreements (RTA) can be utilized to help developing countries. Under the standard territoriality principle, products imported from countries outside of a RTA territory will be treated as non–originating. A rigid application of the rules can lead to a denial of origin for products even if considerable portions originate from the RTA country or even if they are substantially transformed within the RTA country. This pressures manufacturers to move production locations away from countries that are not parties to a RTA. The flow of trade and investment face distortions and ultimately the economic interests of non–RTA countries can be thwarted. Due to their economic vulnerability, developing countries will bear a considerable burden of such shifts in production. In this paper, we show how outward processing provisions in several recently adopted RTAs can serve as a means to overcome the problems that arise out of strict application of the territoriality principle and thus help developing countries.
SWFs, Recent US Legislative Changes, and Treaty Obligations Sovereign Wealth Funds, Recent US Legislative Changes, and Treaty Obligations
Authors: Hsu Locknie
Published: April 2022

A confluence of events has highlighted the role of sovereign wealth funds (SWFs) in recent times, giving rise to debate as to their role, governance, and how national investment regimes view their investments. Important amendments to US investment-screening legislation in 2007 have given rise to some concerns on the part of SWF investors. Apart from national investment-screening laws such as those of the United States and Canada, recipient countries of such funds’ investments may have also international or bilateral treaty obligations towards SWFs as foreign investors. Recent international efforts have also produced some ‘soft law’ instruments to address the governance structures of SWFs and recipient countries’ approaches to their investments. This article provides a composite picture of the recent US amendments, relevant international and bilateral treaty obligations, and the recent ‘soft law’ instruments that together have an impact on SWF investments.
China’s WTO Accession and Sustainable Development: Challenges and Policy Responses
Authors: E Xiaomei
Published: April 2022

China formally joined the World Trade Organization (WTO) on 11 December 2001, during the organization’s ministerial meeting in Doha. On the same occasion, trade ministers, including those of China, reaffirmed their commitment to the objective of sustainable development. Reflecting that the three pillars generally accepted to define sustainable development, this paper conducts an integrated analysis of the economic, environmental, and social effects of China’s WTO accession and the linkages between them. Through this analysis, it tries to identify the challenges that China faces today in achieving sustainable development. It also proposes a set of policy responses that could be adopted by the Chinese government to offset harmful effects of the country’s accession to the WTO and to promote its positive outcomes in the context of sustainable development.
Trade Commitments in Education Services: The Need to Move Out of the Current Impasse
Authors: Naidoo Vik
Published: April 2022

Education services is included as part of the General Agreement on Trade in Services (GATS). This inclusion, however, has not gone without its critics, and discussions about the liberalization of education remain distinctly polarized. This article seeks to bring a more balanced debate to the mix by presenting the case of New Zealand, one of the most liberalized World Trade Organization (WTO) Members in trade in education services. Through this case study, it is discussed how New Zealand has chosen to shape the growth of the education market and steer its developments by including controlled mechanisms as part of its regulatory framework.
Evolution in India’s Regional Trading Arrangements
Authors: Seshadri V.S.
Published: April 2022

This paper traces the evolution of India’s Regional Trading Arrangements (RTAs). From limited scope RTAs with developing countries earlier to more comprehensive agreements with neighbouring economies, India is now negotiating RTAs with some of the major Organization for Economic Cooperation and Development (OECD) economies. These moves are examined in the context of the global RTA scene with particular relevance to Asia. The impetus provided by India’s liberalized trading framework and its rapid growth is assessed. The pros and cons of RTAs are looked at and the possible approaches that India could adopt in shaping more balanced agreements dwelt upon.
The WTO Law and the EC’s GSP+ Arrangement
Authors: Turksen Umut
Published: April 2022

The European Communities (EC) has developed a Generalized System of Preferences (GSP), including the ‘Special Incentives for Sustainable Development and Good Governance’, also known as GSP+. Under the World Trade Organization (WTO) law, GSPs are generally authorized by the Enabling Clause, allowing developed countries to grant trade preferences to the advantage of developing countries on a non-reciprocal basis. However, trade negotiations and disputes pertaining to these preferences have been some of the most difficult and acrimonious. This article argues that the GSP+ violates the most-favoured-nation (MFN) principle of Article I:1 GATT and therefore is only compliant with WTO law if it can be justified on appropriate legal grounds.
Mexico in the WTO and NAFTA in a Nutshell: Litigating International Trade Disputes
Authors: Huerta-Goldman Jorge A.
Published: April 2022

In this short article, I examine Mexico’s trade dispute cases in regional and multilateral fora, and attempt an explanation of its conduct. I argue that lobbying efforts (political economy) play an important role in determining Mexico’s decisions to initiate litigation. In turn, concerns relating to bargaining power seem to guide its implementation. Finally, I advance some thoughts on the choice of forum (NAFTA v. WTO), when it comes to cases that could go under either. I do not attempt to provide a comprehensive response to the issue of forum shopping as this work is focussed on offering an explanation on how Mexico deals with its trade disputes.
Trade Policy and Gender – Unfolding the Links
Authors: Zarrilli Simonetta , Nicita Alessandro
Published: April 2022

Globalization and trade liberalization bring complex and often contradictory effects on women’s access to employment, livelihood and income. In some cases, they generate employment and entrepreneurial opportunities for women; in others, they create burdens by disrupting markets in which women operate. Women’s education and skill accumulation seem to be the most important factors determining the impact of trade on women’s economic and social empowerment. Trade policies clearly have discrete impacts on women, yet they have long been gender-blind. Although mainstreaming gender in trade policy is a more recent endeavour, there is a quite large experience in mainstreaming other issues in trade policy. The lessons learned through these experiences may prove useful when mainstreaming gender in trade policy.
Financial Sector Regulation and Financial Services Liberalization at the Crossroads: The Relevance of International Financial Standards in WTO Law
Authors: Bismuth Régis
Published: April 2022

This article provides an assessment of the relevance in World Trade Organization (WTO) law of the international financial standards set by the Basel Committee on Banking Supervision (Basel Committee), the International Organization of Securities Commissions (IOSCO), and the International Association of Insurance Supervisors (IAIS), international cooperation for a bringing together domestic financial regulators. This analysis gauges the potential use of these international financial standards in a potential future dispute settlement involving the domestic regulation of financial services. It demonstrates their relevance in WTO law as well as their both considerable and contested role in the institutional practice of the organization, thereby highlighting the incentives for regulatory harmonization that are embedded in the General Agreement on Trade in Services (GATS). The difficulties are mainly centred on the Basel Committee due to its limited membership, therefore not meeting the conditions of validity for the recognition of external standards laid down in the GATS, and also leading to the reluctance of some developing countries unwilling to endorse standards to which they have not previously agreed. More broadly, this study reflects on the potential tensions between plurilateral regulatory strategies and the multilateral context of the WTO and highlights the insufficient coordination between the international legal frameworks for the regulation and for the liberalization of financial services.
Negotiating from Weakness in International Trade Relations
Authors: Odell John S.
Published: April 2022

Small states face an enormous power disparity in international relations, and from a distance it might seem that in trade negotiations they have little alternative but to accept others’ decisions. But evidence suggests that even the small- and mid-sized have achieved some gains and reduced losses in bargaining with the strong. They have managed in some cases by using astute combinations of negotiation moves at the table and away from the table. Being small even has a few advantages, paradoxically. To help improve practice beyond the current World Trade Organization (WTO) stalemate and recession, negotiation researchers need to devote more attention to the experience of small- and mid-sized states. Those states need to invest more in training not only in economics and law but also in negotiation analysis and strategy.
Non-market Capabilities and the Prosecution of Trade Remedy Cases in the United States
Authors: Lindeque Johan Paul , McGuire Steven Michael
Published: April 2022

The study investigates the prosecution of US trade remedy cases as examples of administrative government agency investigations and seeks to identify key capabilities for effective corporate political strategy targeting these institutions. Trade remedy cases are important policy tools, designed to protect domestic firms from ‘unfair’ import competition. The research contributes to the growing literature on corporate political activity and its links with superior outcomes in the marketplace. Three capabilities are identified: the capability to collect market/non-market intelligence, the capability to build and shape the administrative record, and the capability to align business practice with the US trade remedy institutions.
Climate Change and the WTO: Cap and Trade versus Carbon Tax?
Authors: Maruyama Warren H.
Published: April 2022

In the rush to enact cap and trade, major World Trade Organization (WTO) concerns have been overlooked. These problems are not necessarily fatal, but fixing them would have political costs. Free emissions allowance rebates to trade-intensive industries represent a WTO-illegal export subsidy, which may make a US cap-and-trade system unworkable for export-dependent economies like Japan, Germany, and China. The best interim solution would be a carbon or energy tax that is imposed on imports and rebated on exports to ensure a level playing field. Such a system could be implemented under the WTO's existing border tax adjustment rules even in the absence of a multilateral climate agreement.
The WTO Dispute Settlement System 19952010: Some Descriptive Statistics
Authors: Horn Henrik , Mavroidis Petros C. , Johannesson Louise
Published: April 2022

The World Trade Organization (WTO) is the busiest state to state court nowadays. It is a rarity in international relations since it includes compulsory third-party adjudication and a permanent second instance court. This paper aims to shed light on the actual use of the system by WTO Members. We divide WTO Members into five distinct groups and evaluate their participation in terms of which agreements they invoke as legal benchmark to challenge practices by other WTO Members, the identity of panelists chosen, their percentage of wins and defeats, etc. The time span for our statistical observations extends from the advent of the WTO 1995 to end of 2010.
Democracy and the Political Economy of Multilateral Commitments on Trade in Services
Authors: Roy Martin
Published: April 2022

Research on the relationship between democracy and trade has so far neglected multilateral negotiations and more generally the content of trade agreements, in particular the market access bindings undertaken by countries. This article finds that more democratic countries undertake greater market access commitments under the multilateral General Agreement on Trade in Services (GATS). I argue that non-democratic regimes take fewer commitments, because these reduce their discretion in granting rents to ensure the support of small groups. In contrast, for democratic regimes, commitments that lock-in levels of access have lower costs because voters generally do not favour increased protectionism. Democracies also have greater incentives to take commitments since they signal good economic policy-making to voters. Moreover, the article finds that endowments have a direct impact on commitments. I argue that greater human capital endowments translate into greater pressures from industry groups for international commitments. The empirical analysis provides support for these propositions. The analysis also suggests that economic size and regulatory capacity are positively linked to GATS commitments.
Investor State Arbitration or Local Courts: Will Australia Set a New Trend?
Authors: Trakman Leon E.
Published: April 2022

The Australian Government announced in April 2011 that it will no longer include arbitration clauses in its investment treaties but will provide that investment disputes between foreign investors and host states be heard by the domestic courts of those host states instead. This statement reflects doubts by a developed state about the efficiency of bilateral investment treaties (BITs) in general and investment arbitration in particular. It also raises the question whether other countries will follow particular strategies to suit their discrete needs. One ramification is that resource wealthy states will make tactical decisions, such as entering into BITs only with capital exporting countries, as South Africa has declared. Another is whether developed states will avoid concluding BITs with developing countries whose domestic court systems are unknown or mistrusted. Yet another issue is how a policy statement, such as enunciated by Australia, will impact on its ability to attract foreign investment while protecting its national interests and also its investors abroad. This article deals with these issues, highlighting the significance of competing dispute resolution options in addressing the issues.
Patents in TRIPS-Plus Provisions and the Approaches to Interpretation of Free Trade Agreements and TRIPS: Do They Affect Public Health?
Authors: Xiong Ping
Published: April 2022

The proliferation of regional or bilateral Free Trade Agreements (FTAs) has seen the adoption of an increasing number of TRIPS-plus measures to provide heightened levels of intellectual property protection. One implication is that protection of public health may be affected if access to medicines is restricted by the relevant patent provisions in these TRIPS-plus provisions.

The interpretation approach adopted by WTO has led to an understanding of TRIPS in a manner supportive to public health. Many FTAs have established their own interpretation approach that will also impact on issues concerning access to medicines and public health. The patent provisions in the TRIPS-plus provisions seem to cause conflict between the protection of public health in TRIPS and that in TRIPS-plus regimes if higher levels of patent protection are adopted in FTAs.

This article analyses the relationship between the approaches to interpretation of TRIPS and TRIPS-plus and discusses the impact of this interpretive relationship. This article examines the object and purpose of TRIPS and its subsequent developments for the interpretation of TRIPS-plus. This article then discusses the justification of heightened patent protection in the TRIPS-plus and the justification narrative upon the interpretation of the patent provisions in FTAs. This article then concludes that the interpretation of the patent protection provisions in the TRIPS-plus should be conducted with reference to TRIPS and its subsequent developments in order to harmonize TRIPS and TRIPS-plus in the context of public health protection.
How Vulnerable Is Indias Trade to Possible Border Carbon Adjustments in the EU?
Authors: Dhar Biswajit
Published: April 2022

This paper presents an empirical exercise with the aim of adressing the following research questions: (a) how vulnerable is India's trade to any future border carbon adjustments in the European Union (EU) and (b) which sectors/items are most likely to be affected? The exercise is based on the EU List released in December 2009, in which the bloc has identified 164 (sub)sectors as deemed to be exposed to a significant risk of carbon leakage. In light of the finding that the Harmonized System's (HS) six-digit items corresponding to the (full) EU List comprise the lion's share of India's exports to the EU, it is argued in this paper that there is a very high probability of any such border measure having a considerable impact on India's exports to the bloc. The study further reveals that even if the EU decides to leave the 117 highly trade-intensive but low carbon-intensive sectors (included in the EU List) outside the ambit of any future border carbon adjustments, the overall vulnerability of India could still be quite high. Among the four BASIC countries (namely, Brazil, China, India and South Africa), India appears to be the second-most vulnerable, after South Africa.
The Roadmap for a Prospective US-ASEAN FTA: Legal and Geopolitical Considerations
Authors: Hsieh Pasha L.
Published: April 2022

This article examines the legal framework governing economic relations between the United States and the Association of Southeast Asian Nations (ASEAN) and outlines a roadmap for a US-ASEAN Free Trade Agreement (FTA). Notwithstanding ASEAN's emerging centrality in Asian regionalism, America remains the only Pacific power that has not concluded any form of FTA with ASEAN. This article explains that limited progress in Washington's efforts stemmed from the domestic politics of the US Trade and Investment Framework Agreement (TIFA) approach and the Myanmar dilemma. It further analyses the challenges that the Trans-Pacific Partnership (TPP) Agreement negotiations have encountered and contends that the TPP cannot be a substitute for a US-ASEAN FTA. Finally, a 'Plan B' roadmap to reinvigorate US-ASEAN trade ties is proposed. This roadmap calls for an enhanced TIFA that incorporates the building block features of ASEAN's framework agreements, thereby laying a solid yet gradual foundation for an FTA. This research therefore provides a valuable study of a region-based FTA under the multilateral trading system.
Exchange Rate Misalignments and International Trade Policy: Impacts on Tariffs
Authors: Ferraz Lucas , Thorstensen Vera , Marçal Emerson
Published: April 2022

The debate on 'exchange wars and trade wars' is raising the attention of experts on international trade and economics. The main purpose of this paper is to analyse the impacts of exchange rate misalignments on one of the most traditional trade policy instruments - tariffs, as defined by the World Trade Organization (WTO). It is divided into three sections: the first one examines the effects of exchange rate variations on tariffs and its consequences for the multilateral trade system; the second explains the methodology used to determine exchange rate misalignments and also presents its results for Brazil, US and China; and the third summarizes the methodology applied to calculate the impacts of exchange rate misalignments on the level of tariff protection through an exercise of 'misalignment tariffication'.
GATS and Offshoring: Is the Regulatory Framework Ready for the Trade Revolution?
Authors: Gari Gabriel
Published: April 2022

This article examines the relevance of GATS in light of the rise of trade in ICT-enabled services and, in particular, the rapid expansion of the offshore industry. It provides considerable evidence about the difficulties to adjust trade rules and specific commitments negotiated in the late 1980s and early 1990s to a significantly different commercial environment led by technological innovations and the emergence of global supply chains. It reviews various alternatives that could be considered for upgrading rules on trade in services and argues that inaction could result in GATS early obsolescence.
The Appellate Body Approach to the Applicability of Article XX GATT In the Light of China  Raw Materials: A Missed Opportunity?
Authors: Espa Ilaria
Published: April 2022

This article attempts to analyse and investigate the implications of the approach to the applicability of Article XX GATT adopted in the recent China - Raw Materials. Using the decision on the non-availability of Article XX defences for violations of China's WTO-plus commitments on export duties as a backdrop, it scrutinizes the more general, 'systemic' approach to the applicability of Article XX exceptions developed by the WTO dispute settlement bodies, and sheds light on the implications of such approach with respect to the relationship between GATT 1994 and WTO obligations arising from different instruments of the WTO Agreement, such as new members' accession protocols. It also suggests that an exception to this general approach could be envisaged when the fundamental environmental goals protected under Article XX b) and g) are at stake.
Emerging Economies and the Emergence of South-South Protectionism
Authors: Bown Chad P.
Published: April 2022

Do exports resume when import-restricting temporary trade barriers (TTBs) such as antidumping are finally removed? First, this paper uses data from the World Bank's Temporary Trade Barriers Database to update through 2011 a number of inter-temporal indicators of import protection. Second, it highlights the economic significance of emerging economy exporters affected by frequently bilateral import restrictions imposed by other emerging economies, that is, South-South protectionism. Third, it finds that China's exporters respond quickly and aggressively to the market access opening embodied in the removal of such import restrictions. This result differs markedly from the slow and tepid export response of other emerging economies, especially when the TTB had been imposed by another emerging economy.
The EU, the WTO and Indirect Land-Use Change
Authors: Lydgate Emily
Published: April 2022

Efforts to meet the European Union's (EU) alternative energy targets have resulted in increased production of biofuels. This production has resulted in deforestation-related emissions through displacement of agricultural production, a problem known as indirect land-use change. The European Commission (EC) has proposed regulatory options to respond to this problem, but all risk not being in conformity with World Trade Organization (WTO) law. Trade law challenges result from the underlying methodological uncertainty, and the attempt to address a systemic problem on the level of individual producers. Yet, this does not necessarily indicate that the intent of these regulations is to protect EU markets. Thus, this is an instructive case study to examine the relationship between WTO law and complex, emerging environmental problems.
Complementing Each Other or Stoking Further Complexity?
Authors: Lee Jaemin
Published: April 2022

Over the years, international investment law and international trade law have taken their respective paths of development with each regulating distinct areas of international economic relations. Interestingly, however, a new trend seems to emerge in which the two legal norms interact and/or converge.

This 'interaction' or 'convergence' is a double-edged sword. On the one hand, each norm could complement the other, so as to enhance the notion of rule of law in the respective areas. On the other hand, new problems such as multi-dimensional forum shopping will pose another level of complexities. Adjusting this convergence toward a right direction will be critical for the future framework of international economic law.
Pushing the Boundaries of Products and Goods under GATT 1994:An Analysis of the Coverage of New and Unorthodox Articles of Commerce
Authors: Munro James
Published: April 2022

The General Agreement on Tariffs and Trade 1994 ('GATT 1994') represents one of the most enduring and successful multilateral projects of modern times. Given its central and dominant position in the multilateral trading system, it is interesting that GATT 1994 contains no express definition of the objects that it regulates - 'products' and 'goods'. While this omission may not have raised substantial legal difficulties in the past, rapid changes in technology and the rising use by governments of market instruments to manage resources and the environment have seen the creation of new and unorthodox items of international commerce. The atypical qualities of these items, such as their intangibility or their status as 'regulatory property', raise questions as to whether they fall within the scope of GATT 1994. By testing the legal boundaries of the terms 'products' and 'goods', this article seeks to develop a legal framework for assessing whether, and to what extent, new and unorthodox items of international commerce fall within its scope. It then applies this framework to two examples, carbon units and digital products, concluding that, far from being rigid or limited, GATT 1994 is sufficiently capable of evolving to cover many of these new and unorthodox items.
Public Body or Not: Chinese State-Owned Enterprise
Authors: Ding Ru
Published: April 2022

Chinese state-owned enterprises (SOEs) pose an increasing number of challenges to the international trade regime. One of the issues is how to regulate state-owned enterprises under the World Trade Organization's rules on subsidies. This paper tackles the issue of what criteria decide whether an SOE can be a 'public body' that provides subsidies to other enterprises under the Agreement on Subsidies and Countervailing Measures. Appellate Body's jurisprudence on this issue is not clear, and the debate regarding the proper line between 'public body' and 'private body' continues. This paper is the first attempt to provide a systematic and objective analysis of three different approaches in interpreting the term 'public body', providing a framework for further discussions on the proper legal status of Chinese SOEs under the World Trade Organization (WTO) legal regime. By examining the negotiation history and varying approaches to the issue, this paper identifies the problems of current Appellate Body's approach and provides proposals for future clarification. Taking Chinese SOEs as examples, this paper also analyzes potential impact of different approaches on SOEs.
When Chinas National Champions Go Global: Nothing to Fear but Fear Itself?
Authors: Du Ming
Published: April 2022

Due to the success of the 'Go Global' policy, in recent years there has been a dramatic increase in overseas direct investment made by Chinese state-owned enterprises (SOEs). However, Chinese SOEs' overseas investment has been viewed with suspicion and several attempted acquisitions discontinued in the face of strong opposition from host countries. This article analyses the plausibility of some common fears about Chinese SOEs' overseas direct investment and evaluates critically the regulatory responses of the US, Canada, Australia and the European Union motivated by such fears. The article argues that though some fears are legitimate, they are grossly exaggerated in view of the SOE reforms in China over the past three decades. The policy implications of this finding for both host countries and China's ongoing SOE reforms are also explored.
The WTO Trade Facilitation Agreement: Consulting the Private Sector
Authors: Grainger Andrew
Published: April 2022

Trade facilitation concerns itself with the operational quality of the international trade environment; and has its roots in the frustrations experienced by businesses when moving goods across borders - especially with regard to inefficient border management practices and trade and customs procedures. On 7 December 2013 the WTO reached an agreement on trade facilitation. Now, with trade facilitation at the very heart of contemporary trade policy, trade diplomats are faced with the challenge of having to reach a view about the quality of trade facilitation in any given country. Subsequently, as this paper argues, dedicated institutional mechanism involving the private sector - for example, within the spirit of UN CEFACT Recommendation 4 - need to be developed. Although consultation with the private sector is not without its challenges, they would help ensure that the resources invested into trade facilitation are put to best use, and that the quality of implemented trade facilitation measures are continuously monitored and assessed.
Mapping Private Regulation  Classification, Market Access and Market Closure Policy and Laws Response
Authors: Purnhagen Kai
Published: April 2022

Private forms are gaining importance in the regulation of supply chains. Drawing on insights on the diminishing effectiveness of classical top-down regulation in inter-, supra-, and transnational supply chains, methods from self- and co-regulation increasingly take central stage. This new field comprises of standard-setting, auditing, accreditation and enforcement. This chapter devotes an introduction and analysis of this emerging field of regulation and its relationship to law. It identifies the main regulatory character as market access and market closure challenge. It will show how law has responded to this challenge so far and will close with a summary and anticipation of some legal questions that remain open.
One Hundred Years of Anti-dumping in South Africa
Authors: Brink Gustav
Published: April 2022

South Africa is one of the oldest and biggest users of anti-dumping as a form of trade protection, with more than 1,000 investigations conducted over the past 100 years. It has imposed anti-dumping duties both on services (ocean freight) and to address depreciated currencies, long before these became issues in the WTO. Existing procedures do not meet South Africa's WTO obligations and decisions are often influenced by political pressure to impose duties. Although there is an urgent need for a review tribunal, there have been some considerable improvements in transparency recently.
The Sequencing Dilemma: Will the European Union Succeed against Indonesia?
Authors: Shahani Garima
Published: April 2022

The issue of sequencing has been the subject of discussion for quite some time now as the Members have been unsuccessful in progressing with the amendments to the DSU. This article discusses this very debate that has resurfaced after the European Union (EU) filed a complaint against Indonesia for its recourse to Article 22.2 in the US - Clove Cigarettes case. It discusses the US - Clove Cigarettes case in brief before moving on to a discussion of the compliance aspect of the existing dispute between the EU and Indonesia. It then discusses the jurisprudence that has evolved through case law and examines the reforms suggested by Mr Soto to resolve the apparent contradiction between Articles 21.5 and 22.6.The article concludes with an examination of the other Members' views on the sequencing aspect of this complaint along with the author's opinion on its resolution.
The European Neighbourhood Policy and Israel: Achievements and Disappointments
Authors: Reich Arie
Published: April 2022

Over a decade has passed since the European Union (EU) launched its European Neighbourhood Policy (ENP) and nine years since the Action Plan with Israel was adopted. Politicians on both sides talked about deep economic integration, ‘a stake in the internal market’, ‘everything but institutions’, and arrangements that could be as close as what the EU has with countries like Norway or Iceland in the European Economic Area. This article aims to examine to what extent the great hopes with which the ENP was greeted both in the EU and in Israel have materialized, in particular in the field of international trade and economic integration. The article compares the actual achievements with the original goals of the ENP Action Plan and finds more disappointments than achievements. Among the achievements, the article describes and analyses the Agreement on Conformity Assessment and Acceptance for industrial products concluded in 2012 and the bilateral aviation agreement (‘Open Skies’), as well as Israel’s accession and successful participation in the EU scientific research and technical development programmes (including the ‘Horizon 2020’). The list of what could and should have been done, however, is longer and more disappointing, and it includes issues such as trade facilitation through modernization of customs administration, revision of outdated protectionist rules of origin, and the EU’s failure to contribute to peace in the Middle East by refusing to recognize diagonal cumulation of origin between Israel and its neighbours. Likewise, the lack of any progress on important topics such as competition rules, public procurement, trade in financial and professional services, e-commerce and investment, to name a few, outweighs the few achievements that can be noted. The article then proceeds to discuss the possible reasons for these disappointing results.
Say It Loud, Say It Clear: Article 3.10 DSUs Clear Statement Test as a Legal Impediment to Validly Established Jurisdiction
Authors: Natens Bregt , Natens Bregt
Published: April 2022

In paragraphs 53 and 54 of Mexico – Soft Drinks, the Appellate Body (AB) stated that a panel does not have a margin of discretion to decline to exercise validly established jurisdiction, yet continued by implying that legal impediments precluding a panel from exercising its jurisdiction may nonetheless exist. This article argues that the AB’s statements are both internally coherent and coherent in light of the whole of its jurisprudence by way of two arguments. First, a panel indeed has no margin of discretion to decline to exercise validly established jurisdiction. However, jurisdiction is not automatically validly established. Second, legal impediments precluding validly established jurisdiction exist. These are, it is argued, Articles 3.7 and 3.10 DSU. The article subsequently develops ‘procedural’ good faith in Article 3.10 DSU as a legal impediment and explains that the test for a violation of this provision demands a ‘clear statement’. While the conditions for the fruitful invocation of a violation of ‘procedural’ good faith as in Article 3.10 DSU have never been met in WTO disputes, we nonetheless consider that case law has cleared the path for a dispute in which this would be possible.