bluuebunny/crossref_metadata_2025 huggingface dataset:
Human Rights at Work: The Need for Definitional Coherence in the Global Governance System
Authors: Bellace Janice R.
Published: April 2022

In describing the rights companies should respect, the UN Global Compact and the UN Principles on Business and Human Rights refer to the ILO's 1998 Declaration of Fundamental Principles and Rights at Work. Company codes of conduct, and various certification, audit and reporting entities use language that is identical or similar to that found in the ILO Declaration. For years the International Labour Organization (ILO) was viewed as the authority on what certain human rights mean in the work context. This certainty was challenged in June 2012 when the Employers Group at the International Labour Conference (ILC) attacked the ILO's Committee of Experts (CEACR) for discussing the right to strike as part of its commentary on Convention No. 87, Freedom of Association and the Right to Organise. Underlying this criticism was the Employers' awareness that others were using the General Survey of the CEACR to comprehend the scope of certain human rights found in statements such as the UN Global Compact. The Employers identified 'the critical issue' as the fact that the CEACR's 'observations were being viewed by the outside world as a form of soft law labour standards jurisprudence.'

This article will set out the 1998 ILO Declaration and will then discuss the two major UN pronouncements on human rights at work. It will review the standards used by other entities active in this space. This article will conclude that companies must accept that society has placed certain responsibilities on them to apply human rights in their sphere of control. It will also argue that for the post-World War II concept of universal human rights to remain valid and effective, there must be agreement on what specific rights mean in practice and that, in turn, requires acceptance of an international body's legitimacy in making these determinations.
What Can Be Done about Strike-Related Violence?
Authors: Rycroft Alan
Published: April 2022

Recent newspaper reports and several decisions of the South African Labour Court illustrate that strike-related violence continues to be a destructive feature of industrial action. The misconduct includes the murder of non-strikers, destruction of property, random plundering of street-based traders, and intimidation. In the strike context labour law is proving to be an inadequate framework to regulate mob violence and criminal activity. Employers lack police expertise and powers to prevent and control a strike while it is occurring and to investigate strike-related misconduct after the strike. In the workplace, disciplinary action is often thwarted by the intimidation of witnesses. The mechanisms of control within labour law are mainly judicial. Employers can turn to the courts for an interdict to stop a strike or to restrict aspects of it. Employers can later seek a court order for compensation for loss attributable to the strike. If there is evidence of intimidation or other criminal activity, criminal charges can be laid. The courts may be prepared to suspend or nullify the protected status of a strike because of violence. These legal mechanisms are largely reactive and punitive, and a more holistic approach to the problem is required. There is a body of literature outside of law which helpfully explains the psychological, sociological and economic factors that contribute to mob violence. A fuller understanding of these factors, together with a robust and systematic pre-strike facilitation process which is supportive of good-faith negotiation, is proposed as pre-emptive measures to improve the situation. Finally, this article will consider comparative law insights into the regulation of misconduct during strikes.
Third-Country National Students and Trainees in the EU: Caught between Learning and Work
Authors: de Lange Tesseltje
Published: April 2022

Foreign students and trainees are welcomed by the EU for study purposes. Member States must ensure that during their studies third-country national (TCN) students can legally work for at least ten hours a week, whereas trainees may not. This article deals with these often overlooked TCN students and trainees as migrant workers. It presents an extensive analysis of EU labour migration Directives on the level of protection of TCN students and trainees in comparison to illegally staying TCNs, with a case-study based on Dutch employer sanctions case law. The aim of the article is to map this reclassification of students and trainees as workers. One conclusion is that legally staying migrants may be more vulnerable and receive less protection under EU law than irregular migrant workers.
The Common Law and the Reconstruction of Employment Relationships in New Zealand
Authors: Anderson Gordon
Published: April 2022

The theme of the articles in this issue of the journal is the ‘withdrawal’ of the common law courts from areas of labour law regulated by statute, using the rationale that they should not intervene in such areas even if there is no explicit statutory exclusion relating to the point at issue. This article takes a slightly different approach and considers the role played by the New Zealand Court of Appeal following the neoliberal reforms to labour law by the Employment Contracts Act 1991. It argues that the Court, rather than ‘withdrawing’, actively intervened in the development of the law to reinforce the neoliberal reforms and to ensure that the bipartite values that had characterized labour law for most of the twentieth century were displaced by the unitary values of the common law. While approaching the topic from a different perspective, the conclusion is much the same: the courts consistently decline to extend the common law in ways which would have enhanced employee rights against employers, an inhibition noticeably absent when extending the range and scope of duties owed by employees to their employers. This article argues that if employment relationships are to balance adequately the relationship between capital and labour, the autonomy of labour law must be increased through a greater codification, the reinforcement of specialist courts and the minimization of the intrusion of the common law courts into their jurisdiction.
Labour Law and Feminist Method
Authors: Conaghan Joanne
Published: April 2022

This article explores the application of feminist method in the context of contemporary scholarly efforts to reclaim and/or refashion labour law as a discipline and field of study. The central methodological importance of gender as a category of analysis is highlighted and common critical techniques deployed by feminists to advance gender-inflected analysis identified and illustrated. A core insight the article seeks to advance is that because mainstream labour law scholars tend to approach feminism as animated solely by gender equality concerns, they overlook the broader analytical and conceptual contribution that feminist scholars can and do make to tackling and resolving key challenges and concerns arising from the social organization of work and its regulation.
Law-and-Economics Approaches to Labour and Employment Law
Authors: Schwab Stewart J.
Published: April 2022

This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. Era Two emphasizes that labour and employment laws might enhance overall social welfare by correcting market failures arising from monopsony power, externalities, public goods, asymmetric information, information-processing heuristics, and internal labour markets. Era Three uses empirical methods to referee between markets-work and markets-fail approaches. The article argues that unequal bargaining power is not a standard market failure, because even powerful employers have a profit-maximizing motive to provide benefits, such as vacation or safety, that workers are willing to pay for.
Republican Non-Domination and Labour Law: New Normativity or Trojan Horse?
Authors: Bogg Alan
Published: April 2022

This article considers the prospects for a new normativity for labour law based upon neorepublican theories of non-domination. It argues that the neo-republican tradition is complex and contested, and that it does not generate a single normative template for labour law. Some neo-republican theorists prescribe a policy mix of enhanced ‘exit’ rights and labour market deregulation, whereas others advocate a radical programme of structural emancipation. It is important that labour lawyers scrutinize the details of neo-republicanism, to ask which neorepublicanism, before embracing it wholesale as a new foundation for the discipline.
Non-Domination, Workplace Republicanism, and the Justification of Worker Voice and Control
Authors: Breen Keith
Published: April 2022

Recent years have seen two distinct responses emerge within republican political theory to the problem of managerial domination in the workplace. The first, as found within the ‘neorepublican’ theories of Philip Pettit and Frank Lovett, argues that, in addition to existing regulatory protections, free market exchange backed up with an effective right of exit for employees secured through unconditional basic income policies is sufficient to counter employer domination. The second response, advanced by a number of ‘workplace republicans’, challenges the neorepublican understanding of economic domination and the claim that a right of exit secured through basic income policies can sufficiently check managerial power. Under this alternative perspective, what are required are tight regulation of workplace practices and the institutionalization of worker voice and democratic control within firms. This article explores the neo-republican argument and strategy for limiting employer domination through an effective right of exit. It then moves to question the neo-republican position and to offer an evaluation and defence of some of the strategies recommended by workplace republicans as a means towards institutionalizing employee voice and control within firms.
Platform Work, Algorithmic Decision-Making, and EU Gender Equality Law
Authors: Kullmann Miriam
Published: April 2022

Much of the literature produced in recent years has tried to systematize the various forms of platform work while considering how to (re)classify those working through digital platforms. While this contributes to our understanding of the nature of work in the digital economy and the extent to which current labour law is problematic for some platform workers, the gender dimension and implications, especially the growing concern about discrimination between men and women in the digital economy, appear to have received little attention so far. A recent study showed that some female platform workers receive lower pay than their male counterparts. As some online platforms use algorithms to determine pay levels, the key question addressed here is to the extent to which current EU gender equality law, and the principle of equal pay for women and men in particular, is adequate for protecting platform workers in a situation where work-related decisions are not taken by a human being but by an algorithm that is the potential source of discrimination. To understand how regulation should be ‘calibrated’ in cases where algorithms result in discrimination, the theory of classification bias can be helpful. It is assumed that the reason for providing protection based on the equal pay principle to a specific group of employees is not compelling enough to exclude platform workers who are classified as self-employed. This article starts with a brief examination of the challenges of working in the digital economy and then goes on to analyse the role of algorithms and their potential to discriminate based on gender. It is argued that the theory of classification bias could be used to address discriminatory algorithmic decision-making. The theory is then applied to the EU’s principle of equal pay for women and men, suggesting some improvements in relation to platform work.
Constitutionalizing Labour Rights: Informal Homeworkers in Global Value Chains
Authors: von Broembsen Marlese
Published: April 2022

This article analyses, from a constitutionalism perspective, the ubiquitous ‘due-diligence human rights framework’ that aims to hold multi-national corporations accountable for the decent work deficits in their supply chains. The analysis draws on the theories of three scholars: Gunther Teubner, Ruth Dukes and Nancy Fraser. The article’s objectives are three-fold. First, the analysis illustrates the value of Dukes’ idea of a global labour law constitution, augmented by Fraser’s theory of justice, as an analytic to identify who is excluded from participating, and the implications of their exclusion. Second, the article makes a theoretical contribution to debates on constitutionalizing labour rights in a post Wesphalian world, using outworkers/homeworkers to ground the discussion. Finally, it is hoped that the article will contribute to the social, and ultimately the legal recognition of homework as legitimate work.
Work-related Securities: An Alternative Approach to Protect the Workforce?
Authors: Kullmann Miriam
Published: April 2022

As a result of flexibilization, many workers are exposed to increased insecurity with regard to job tenure, decent income and employability, finding themselves in precarious situations and experiencing economic and social inequality. The contract of employment is – still – the main entrance ticket to labour protection. Since an increasing number of workers are not employed in a standard employment relationship and hence are not or are insufficiently protected, this raises the question of whether the employment contract, the key institution connecting labour law, social security and pension law, can still be seen as the norm. The question arises as to how these workers should be protected. Excluding workers from the benefits of labour law merely because a work relationship does not qualify as an employment relationship – with the legal form of the employment contract – does not seem to be compelling. This article explores whether there is an alternative to the existing test of whether an individual has an employment relationship: a workrelated securities approach that would grant all workers regardless of the legal classification of their relationship certain rights depending on the insecurities attached to their particular jobs. This approach would have the advantage of preserving the diverse forms of work while focusing on improving the quality of work and the protection of the workforce.
Institutionalizing a Binational Enforcement Strategy for Migrant Worker Rights
Authors: Gleeson Shannon , Bada Xóchitl
Published: April 2022

An emerging literature has focused on the role of state-of-origin actors in managing the migrant diaspora and implementing their rights. This article instead examines the perspective of destination- state actors who are engaged in national and local partnerships with consular institutions to enforce the rights of migrant workers. In doing so we ask what drives these binational collaborations, what sort of resource investments are necessary to ensure meaningful exchange, and what are the distinct challenges that emerge across place. By bridging the literature on diaspora policies with the literature on tripartite models of co-enforcement of labour standards, we argue that a bilateral perspective is necessary for understanding the dynamics of migrant rights enforcement. Our data draws from official documents and memoranda of understanding, as well as interviews with twenty different federal agency officials in the United States. These findings cast light on how agencies in destination states navigate binational collaborations, and the challenges that emerge through these partnerships. These stem in large part from the limits of claims-driven enforcement regimes, the challenge of coordinating across distinct agency missions and priorities, and the power inequities inherent in mismatched agency staff and resource levels. We also find that bureaucratic actors exercise a great deal of discretion in their work, resulting in wide variation across jurisdictions. We conclude that while bilateral co-enforcement agreements are not a panacea to solve the structural dysfunction of labour rights enforcement for migrant workers, they are also not a useless mechanism that should be easily dismissed.
Regulating Labour Disputes in the Police Services: Legal and Practical Perspectives from Ontario and British Columbia, Canada
Authors: Carabetta Giuseppe
Published: April 2022

Ontario and British Columbia, Canada, have not seen a police strike in living memory. The reason for this is the mandatory interest arbitration model adopted in the two provinces, which sees disputes that cannot be resolved by mutual bargaining referred to a panel of arbitrators who assess submissions in light of statutory criteria. Police officers, and the unions who represent them, have utilized this model to increase pay and improve working conditions often, employers say, without regard to ‘ability to pay.’ This article assesses that claim against the results that the model produces and how insiders understand the system as operating. Its conclusion is that interest arbitration has produced good results, especially for police and emergency workers and the community they serve, but the means of getting there have soured relations and may need reform to remain sustainable into the future.
Union Dispossession of Labour Protection: A Paradox, in Two Legal Systems
Authors: Finkin Matthew W.
Published: April 2022

Though the protections of employment law are usually not subject to waiver by the employee, some countries allow unions to negotiate to modify or abrogate then. This article looks at two: the United States and Germany. It points to a critical distinction between the legal capacity to make collective bargaining agreements having that effect in Germany as compared to the United States. Notwithstanding those differences, it argues that what their experience teaches in common is that such an opt-out can benefit employers by giving needed and mutually understood flexibility, and can benefit unions as institutions by making it advantageous for employers to bargain with them, but that considerable care must be taken when such license is legislated lest discrete or insular groups be dispossessed of a valuable right in a process that advantages employee coalitions that exclude them, or the union as an institution, at their expense.

Public Goods, Dispossessive Law, Tarifdispositives Arbeitsrecht, Trading Material, ‘Sweetheart’ Agreements
A Work–Life Balance for All? Assessing the Inclusiveness of EU Directive 2019/1158
Authors: Chieregato Elisa
Published: April 2022

Along with the growing interest in Work–Life Balance (WLB) in academic debates, policymaking, corporate discourse and everyday life, critical scholars have called for an enquiry into the conceptual and practical ambiguities inherent in WLB discourse and policies. This article aims to contribute to this scholarship by exploring the evolution and the limitations of WLB provisions and policies, with specific reference to the European Union (EU) legal framework. The article provides an account of the evolution of the EU legal framework and explores the regulatory innovations introduced by Directive EU 2019/1158 on Work-Life Balance for Parents and Carers, adopted in June 2019. Drawing on the insights provided in the critical literature, in particular the objections to the focus on work–family balance of professionals at the expense of workers in lower income groups, this article assesses the new Directive against the background of increasing family diversity and the rise of non-standard employment. While some progress has been made towards the recognition of ‘non-standard’ families, many non-standard workers may still fall outside the scope of the Directive, or may not meet the eligibility criteria to access WLB measures, with detrimental effects in terms of equality. The article concludes by presenting the rationale for adopting an intersectional-sensitive approach to WLB.

Work–Life Balance, European Pillar of Social Rights, Family-related Leave, Nonstandard Employment, Domestic Work, Intersectional analysis
Caring for Balance? Legal Approaches to Those Who Struggle to Juggle Work and Adult Care
Authors: Hiessl Christina
Published: April 2022

The provision of informal (family) care is one of the key work–life balance (WLB) issues to be addressed by social policies. So far, both legislative approaches and legal research have focused mainly on childcare-related issues. This is particularly true for the labour law component of policy measures. Considering current demographic trends, it seems crucial to enhance attention on care for older persons and people with disabilities. This article identifies four basic aims of WLB-enhancing social policies – availability, affordability, discouraging ‘too much’ informal care provision, and countering gender inequality – and explores the strategies developed in different legal systems and at the international level to address them. It then examines the degree to which such strategies exist also for adult care, the extent to which ‘transfers’ of childcare-related approaches are conceivable, and the particularities of adult care that call for new approaches to pursue the same aims. It concludes with a discussion of the most important elements of social policy and labour law approaches to promoting the WLB of workers providing informal care for adults.

Work–Life Balance, Family Care, Informal Care, Care Leave, Comparative Law, International Law, Gender Equality, Labour Law, Social Security, Flexible Working Conditions.
The Practice of the Theory of Labour Law: A Review of Philosophical Foundations of Labour Law (OUP 2019)
Authors: Paz-Fuchs Amir
Published: April 2022

An inquiry into the philosophical foundations of labour law is a challenging one, and reviewing a volume of eighteen such chapters only magnifies the challenge. The chapters in this volume cover a wide terrain, encompassing most areas of labour law and thus the intersections between law, society and the economy, within particular realms, and through particular theoretical and at times philosophical perspectives. This arguably reorganizes the inspiring ideas raised by the chapters into a ‘mainstream’ labour law curriculum, while weaving them through with a different strand of philosophical enquiry – that of legal philosophy, and in particular, legal realism. The review begins with the question of employment status (and the corresponding scope of labour law), turning to the contract of employment; statutory protection and employment regulation; equality and non-discrimination; and, finally, trade unions and collective labour law. It concludes with some brief observations on labour law and migration.

Domination, Exploitation, Inequality of Bargaining Power, Scope (of Labour Law), Legal Realism
Multi-level Disputes Relating to Freedom of Association and the Right to Strike: Transnational Systems, Actors and Resources
Authors: Novitz Tonia
Published: April 2022

This article examines disputes regarding the connection between freedom of association and the right to strike, occurring at multiple levels, within international, regional and national legal orders. It focuses on the period from 2007 to 2019, when a challenge was made to norms longestablished at the International Labour Organization (ILO) that was subsequently continued in European and national court proceedings. These events raised the potential for normative fragmentation and conflict between legal systems. This article interrogates the roles played by two key actors in these processes: the International Organization of Employers (IOE) and the International Trade Union Confederation (ITUC). Drawing on sociological insights into collective action offered by Offe and Wiesenthal, transposed to the transnational level, an analysis is offered of the power dynamics that motivated IOE attempts to alter the content and influence of ILO norms, alongside the scope for ITUC resistance, given its resources.
A Model Regulator? Investigating Reactive and Proactive Labour Standards Enforcement in Canada’s Federally Regulated Private Sector
Authors: Noack Andrea M. , Vosko Leah F. , D. K. King Adam , Osten Victoria , J. Clare Emily
Published: April 2022

This article examines labour standards violations and enforcement activities in Canada’s federally regulated private sector (FRPS) between 2006 and 2018. Drawing on an administrative data set (known as the Labour Application 2000 (LA2K)) from the federal Labour Program of Employment and Social Development Canada – we illustrate the dominance of a complianceoriented approach to labour standards enforcement in the federal labour inspectorate. This compliance- oriented model of enforcement assumes that most labour standards violations result from lack of knowledge on the part of employers, and that violations are exceptional rather than a regular feature of contemporary business practices geared to cost-containment. Further, the dominance of a compliance-based enforcement strategy is rooted in the historically unique working conditions, industrial composition, and social demographics of the FRPS. In short, the sector has been characterized historically by a disproportionate number of large firms, and a highly male-dominated workforce, engaged in full-time permanent employment. However, numerous labour standards violations are evident in growing pockets of precarious employment, particularly among small firms in the trucking sector. We argue that the litmus test for the regime’s efficacy should be the degree to which it serves employees in the most precarious employment situations. The inspectorate devotes relatively little time to proactive workplace inspections. Those violations that inspectors do uncover through proactive inspections are principally non-monetary and are rectified primarily on the basis of securing employers’ written commitments to bring their practices into compliance with minimum standards. By way of conclusion, the article outlines the ways in which reliance on a compliance model of enforcement in the FRPS may be contributing to the erosion of labour standards, particularly for those workers in industries where small firms dominate and precarious employment is concentrated, and calls for a more deterrence-oriented approach.

Labour Standards, Enforcement, Compliance, Violations, Workplace Inspections, Federal Jurisdiction, Canada
Generalized System of Preferences in General Agreement on Tariffs and Trade/World Trade Organization: History and Current Issues
Authors: Cunha Raphael , dos Santos Norma Breda , Farias Rogério de Souza
Published: April 2022

The present study investigates the history of the General System of Preferences within the General Agreement on Tariffs and Trade (GATT) and World Trade Organization (WTO) systems with a particular view to define how developed and developing countries adapted their market policies to the demands of the multilateral trading system (MTS). It analyses the role of the most-favoured-nation (MFN) clause and its consequences to developing countries’ interests, within its parameters of differential market access. The study tries to explain the treatment of preferences in an objective light, presenting two current case studies: the formulation of the American GSP scheme and the dispute of India and the European Union in the WTO about the European Union’s GSP scheme. In addition to this, the study focuses on the conflict among developing countries on the issue of special and differential treatment. This focus will lead to a renewed reading of the history of MTS that takes into consideration the frailty of developing countries’ unity and that tries to understand why and to what extent this unity shattered along the way.
The Effect of the Korean Screen Quota System on Box Office Performance
Authors: Il Kim Young , Lee Shi-Young , Kim Eun–mee
Published: April 2022

The objective of this article is to examine the effectiveness of the Korean screen quota system on the box office performance of domestic films. We undertook an empirical analysis and found that the effectively enforced Korean screen quota system did not help to contribute to the box office performance of domestic films. Instead, the results indicate that production budget, critical reviews, and the number of screens contribute significantly to the recent success of Korean movies. Recently, there has been a steep rise in both the production budget of films and the number of multiplex theatres. The nature of game among domestic movie producers has changed to one focused on quality competition (high production and marketing costs). In this article, we found that protection such as the Korean screen quota system does not play any significant role in affecting the box office performance of domestic films.
Exploring the Link Between Trade and Cultural Protection in the Context of Anti–dumping
Authors: Lin Tsai-Yu
Published: April 2022

With the conclusion of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions on 20 October 2005, the complex issue of culture and cultural diversity is gaining a new prominence internationally. Insofar as cultural safeguard instruments are concerned, measures available to domestic cultural industries to respond to the importation of foreign cultural imports are obviously rather limited in the World Trade Organization (WTO). In this article, the author argues that the notion that cultural products are per se unlike is unsuitable for the purpose of the anti–dumping measure. On this point, the conflict arising from the interactions between trade and culture will be particularly identified. In addition, the author also argues that the insertion of public interest clauses into anti–dumping regimes connecting trade and cultural concerns could possibly explore a useful avenue for a society to satisfy its preference for cultural diversity in the anti–dumping action. A case on an ongoing anti– dumping investigation on uncoated printing and writing paper in Taiwan is examined from a cultural perspective.
Contemplating GATS Article XVIII on Additional Commitments
Authors: Bigos J. Bradley
Published: April 2022

The General Agreement on Trade in Services (GATS) Article XVIII on Additional Commitments is among the least understood articles of the GATS, and it has received the least attention among the articles regulating specific commitments. Nonetheless, the terse language of Article XVIII makes clear that it is inextricably linked with Articles XVI and XVII in the regulation of specific commitments on trade in services. This article undertakes to unravel the complexities of Article XVIII, and to illuminate the types of additional commitments Members have scheduled to date. To do so, it reviews documents from the negotiation history, relevant WTO jurisprudence and existing commentary on Article XVIII. It then suggests how Article XVIII might be interpreted under Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Finally, it indicates five categories into which the additional commitments that have been scheduled to date may be organized.
GATS Financial Services Liberalization: How do OECD Members Schedules Impact Commercial Banking FDI?
Authors: Páez Laura
Published: April 2022

The World Trade Organization (WTO) has come to play an important role for a signifi cant number of countries (currently 150) negotiating fi nancial services liberalization under the General Agreement on Trade in Services (GATS). Nonetheless, despite these signifi cant advances, the GATS is far from being complete. Substantial liberalization is still pending in a considerable group of member countries. This leads to regulatory defi ciencies that contribute to a suboptimal provision of fi nancial services. Among the many aspects needing improvement, is a strengthening of GATS provisions to guarantee greater market access and NT to foreign service providers. The analysis of the scheduled commitments and MFN exemptions undertaken by the 30 Organization for Economic Cooperation and Development (OECD) members points to a great variability in the depth of commitments affecting fi nancial services foreign direct investment (FDI). In particular, entry, establishment and competition of foreign banks is determined through market access and NT limitations under the GATS framework. Given the current stalemate in the negotiation process of the GATS, improvements in the current liberalization framework will come from the combination of several processes such as unilateral opening; regionalism; pressures from the International Monetary Fund (IMF ) and the World Bank (through their lending mechanisms) and the OECD, rather than under the aegis of the WTO.
Prior Approval Systems and the Substance – Procedure Dichotomy Under the WTO SPS Agreement
Authors: Foster Caroline E.
Published: April 2022

The de facto moratorium and product–specific measures at issue in the EC – Biotech case involved what amounted to an EC decision to impose a substantive marketing ban on all biotech products. Yet they were treated as involving only a procedural delay under Annex C(1)(A) of the SPS Agreement. The position reached by the Panel in EC – Biotech is surprising from a broader international legal perspective. The likely explanation for the Panel’s approach lies in the SPS Agreement’s negotiating history, and a desire to avoid calling into question the legality of prior approval procedures. However, an absolute distinction between substance and procedure is unsustainable in the longer term.
China, Regional Trade Agreements and WTO Law
Authors: Snyder Francis
Published: April 2022

China’s policy towards regional trade agreements (RTAs) will have a major impact on the international trading system, the debate about regionalism and multilateralism, and the policy of the WTO concerning RTAs. This article analyses China’s RTAs, identifies many reasons underlying them, and proposes a three–fold typology for China’s RTAs: economic integration agreements, standard regional trade agreements with other countries in the Asia–Pacific region, and bilateral free trade agreements with non–Asian countries. It then compares rules of origin, safeguards, and dispute settlement mechanisms in selected RTAs and evaluates them from the standpoint of WTO law. The article concludes, first, that the basic three–fold typology helps us to understand the objectives, organisation, and operation of China’s RTAs and their relations to China’s domestic structures, policy processes, legal and political culture and international and regional policies. Second, China’s RTAs are generally WTO–compatible since they are drafted in the shadow of WTO law, even though WTO law does not always provide a detailed normative template. Finally, China has the challenge and the opportunity of contributing to the development of a new role for the WTO in managing RTAs.
Product Safety, Collateral Damage and Trade Policy Responses: Restoring Confidence in China’s Exports
Authors: Kerr William A. , Liu Huanan
Published: April 2022

In 2007 there were a number of product safety incidents with Chinese exports that garnered mediattention worldwide. There were widespread calls for tightening of regulatory barriers or outright bans onimports of Chinese goods. Consumer confidence in Chinese goods suffered a serious decline and exportsfell. The number of Chinese products with safety problems was small. However, Chinese firms where no afety problems had been discovered suffered reductions in export sales collateral damage. This market failure is investigated and the results suggest that the efficient solution to correcting it requires cooperation etween the Chinese government and importing country governments
FTA Outward Processing at the Crossroads
Authors: Komuro Norio
Published: April 2022

Several modern Free Trade Agreements (FTAs) contain a so-called ‘outward processing’ exception to their rules of origin (ROO). FTAs require that for a good from a Party to enjoy preferential treatment in another Party the good must be made without interruption in the FTA territory. An exception to this territoriality principle is the outward processing scheme. Under this exception, a producer in a Party may send materials to a non-Party for outward processing and re-import the processed goods for finishing. Final products can then enjoy the FTA preference in the importing Party provided that relevant conditions are met.

This article examines various outward processing schemes under current FTAs concluded by, inter alia, Israel, the EU, European Free Trade Association (EFTA), Singapore and South Korea, and compares them with neighbouring regimes (i.e., third-country content and third-country materials rules). This article also assesses the scheme from economic-political and legal viewpoints. Finally, this article suggests some solutions for overcoming problems with the scheme.
Reflections on China’s WTO Accession Commitments and Their Observance
Authors: He Ling Ling , Sappideen Razeen
Published: April 2022

China was one of the original contracting parties to General Agreement on Tariffs and Trade (GATT) 1947. It ceased to be a member in the aftermath of her 1949 Revolution and establishment of an alternative seat of government by the ‘Nationalist Party’ in Taiwan. Following more than fifteen years of sustained negotiation, China once again became a member of the World Trade Organization (WTO) – its 143rd member – in December 2001. In the period between the original GATT agreement of 1947 and the Uruguay Round WTO agreement of 1994, GATT itself had been transformed from being an effete, uncoordinated body to the dominant force in international trade it now is. This article examines the reasons that prompted China to press on with her attempt to rejoin the international trading body in the face of the reputedly onerous accession commitments she was required to fulfil, and of the skirmishes she continues to have with some of the major players in the WTO, namely the EU and the US on her progress in fulfilling these commitments. This article is divided into the following four sections. Section 1 provides a historical perspective of the evolution of China’s foreign trade-related laws and its decision to regain membership of the WTO. Section 2 discusses the changes to China’s domestic trade laws to comply with the WTO laws, mainly the GATT, General Agreement on Trade in Services (GATS), and Trade-Related Aspects of Intellectual Property Rights (TRIPS), as required by the Protocol on the Accession of the People’s Republic of China (PRC). Section 3 discusses some continuing issues relating to the fulfilment of her accession commitments, and Section 4 concludes by an evaluation of the progress made thus far and of future directions relating to the legal convergence of China’s trade-related laws and the WTO laws.
Green Farm Subsidies Sponsoring Eco Labeling: Is the Separation of Market Access and Subsidies Regulation in WTO Law Sustainable?
Authors: Nielsen Laura
Published: April 2022

Ecolabel products, such as organic products, are more expensive than their non-organic counterparts. If nearly all costs incurred when changing production methods from traditional to organic are paid in a subsidy, is that subsidy trade-distorting? It will most likely not be inconsistent with World Trade Organization (WTO) law. The paper evaluates various reasons why WTO law responds so poorly to these situations, questions the historical separation of market access and subsidy regulation that causes the poor response, and seeks other, new and innovative solutions. The paper covers a wide range of issues, including non-violation complaints and why process and production methods (PPMs) are so difficult to work with.
Sprinting During a Marathon: Why the WTO Ministerial Failed in July 2008
Authors: Wolfe Robert
Published: April 2022

The World Trade Organization (WTO) nine-day ministerial sprint in July 2008 was an attempt to break the logjam on ‘modalities’ for agriculture and non-agricultural market access (NAMA) in the marathon Doha Round negotiations. All that observers can know for certain is that the parties did not agree, but understanding the failure is an essential prelude to any attempt to relaunch the Round. This paper is a counterfactual analysis of the various explanations that have been offered for the failure. I consider factors exogenous to the negotiation process such as the macroeconomic context; and factors endogenous to the process such as the timing and level of participation in the meeting, and the nature of the issues under discussion. I conclude that sprinting during a marathon is unwise. The London G-20 Summit commitment to a balanced outcome is achievable, but assembling a package with so many issues involving 153 Members takes time and patience.
The Challenge of Interpreting ‘WTO-PLUS’ Provisions
Authors: Ya Qin Julia
Published: April 2022

This paper seeks to address special interpretive issues raised by the China Accession Protocol, focusing on provisions that prescribe more stringent rules for China than generally applicable WTO disciplines. These ‘WTO-plus’ provisions have already been involved in several WTO disputes. In the light of these disputes, the paper analyzes the interpretive challenge presented by the Protocol and suggests that, to meet the challenge, WTO adjudicators need to embrace a more holistic and systemic interpretive approach. The paper then proposes three working principles that may help to interpret the WTO-plus provisions of the Protocol in a coherent and systematic manner.
The Doha Round and Market Access for LDCs: Scenarios for the EU and US Markets
Authors: de Melo Jaime , Carrère Céline
Published: April 2022

Least developed countries (LDCs) hoped that the DOHA round would bring them greater market access in the Organization for Economic Cooperation and Development countries than for non-LDCs. Using HS-6 tariff level data for the United States and the EU for 2004, this paper estimates that, once the erosion from preferential access into the EU to non-LDCs is taken into account, LDCs have about a 3% preferential margin in the EU market. In the US market, in spite of preferences under the African Growth and Opportunity Act(AGOA), on a trade-weighted basis, LDCs are discriminated against. Under various ‘Swiss formulas’ for tariff cuts, effective market access for LDCs in the EU will be negligible and still negative in the United States. If the United States were to apply a 97% rule (i.e, duty-free quota-free access for all but 3% of the tariff lines), LDCs could increase exports by 10% or about USD 1 billion annually. Effective market access is further reduced by complicated Rules of Origin (RoO) applied by the EU and the United States. Furthermore, generally, the most restrictive RoO fall on products in which LDCs have the greatest preferential market access.
Reducing Product Standards Heterogeneity through International Standards in the WTO: How Far across the River?
Authors: Du Michael M.
Published: April 2022

Heterogeneity in product standards across World Trade Organization (WTO) Members adversely affects the international flow of goods and its reduction will increase global economic welfare if legitimate regulatory objectives are not violated. The Uruguay Round has seen the incorporation of international standards in both the Agreement on Technical Barriers to Trade (TBT) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) Agreement as a harmonization device. Despite many benefits that international standards may offer, WTO’s attachment to international standards has been subject to various criticisms. This paper intends to offer a detailed analysis of the role of international standards in the TBT and the SPS Agreement. Especially, I will examine whether and to what extent international standards have constrained WTO Members’ regulatory autonomy in setting domestic product standards.
WTO Disciplines on Export Credit Support for Agricultural Products in the Wake of the US – Upland Cotton Case and the Doha Round Negotiations
Authors: Coppens Dominic
Published: April 2022

This contribution offers an overview of the current as well as potential future obligations on export credit support for agricultural products under the Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures (SCM). The US – Upland Cotton rulings have not only shown that such disciplines are actually in place, yet they are also in line with – and even go beyond – the obligations imposed on direct export subsidies for agricultural products. Even negotiators seemed surprised by this jurisprudence as they were unintentionally drafting more fl exible rules instead of more rigid ones on export credit support for agricultural products in the Doha Round. This contribution explains that the latest draft on the table would, however, impose additional disciplines that are clearly stricter than those imposed on direct export subsidies but, at the same time, fails to equalize the level playing fi eld among World Trade Organization (WTO) Members and is hard to read in a coherent way.
Participatory Governance in the WTO: How Inclusive Is Global Civil Society?
Authors: Piewitt Martina
Published: April 2022

Drawing on a database containing all available attendance lists of civil society organizations (CSOs) in World Trade Organization (WTO) politics, the article seeks to investigate the inclusiveness of civil society in the international trade regime. The research question is developed in the context of normative literature which argues for the inclusion of civil society in international politics as a remedy for its democratic deficit. By addressing political equality as a core value of democracy, the question of the inclusiveness of global civil society emanates. Literature objects to the inclusiveness of global civil society contesting equal representation. Business interests and societal interests of developed countries are assumed to dominate non-governmental interest representation in the WTO. The article examines the extent to which these objections hold true by evaluating the regional and sectoral distribution of CSOs that participated in WTO’s public outreach programmes between 1996 and 2007.
International Trade and Plant Protection Issues: Example of Plant Quarantine Law of the Russian Federation
Authors: Kireeva Irina
Published: April 2022

In the context of the Russian Federation’s significant trade relations in plants and plant products with other countries, the Russian Federation Law on Plant Quarantine was reviewed in comparison with the International Plant Protection Convention (IPPC) and the EC Plant Health Directive (2000/29/EC). The Russian Law dates from 2001 when the current version of the IPPC (‘1997 revision’) was already in place but basically adopts the plant health principles of the previous version. Hence, some key provisions of the 1997 version that bring the IPPC in line with the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) of World Trade Organization (WTO) are lacking. Overall, the Law is not an obstacle to trade in plants and plant products in itself, but the lack of details in such important matters as pest risk analysis (PRA) suggest that barriers could arise in the interpretation of the Law or in its application through (secondary) normative acts.