bluuebunny/crossref_metadata_2025 huggingface dataset:
No International Organization is an Island . . . the WTO’s Relationship with the WIPO: A Model for the Governance of Trade Linkage Areas?
Authors: Hrbatá Veronika
Published: April 2022

Trade has fuzzy boundaries where it overlaps with many different fields – be it the environment, intellectual property, or other. The World Trade Organization (WTO) is thus required to interact with other international institutions in order to come to an arrangement for dealing with these ‘trade and ?’ linkage areas. The relationship between the WTO and the World Intellectual Property Organization (WIPO) could in many respects serve as a model. The picture that emerges when the various forms of interaction of the two organizations are assessed is that they benefit most from complementarity. Thus, for example, the WIPO offers detailed intellectual property rules, whilst the WTO supplements this with effective dispute settlement. This advantage may largely be due to the fact that the WTO has incorporated many of the WIPO rules into its own law. One of the recommendations put forward here is for other ‘trade and ?’ spheres to do the same. On the other hand, the analysis highlights a number of problems that occur when two institutions cross paths. One such difficulty is a potential conflict of law. To help to resolve it, the WTO dispute settlement system should give greater consideration to the provisions of non-WTO law. Some hope for this is given in the US-Copyright case, but it is questioned whether this still holds in view of more recent caselaw. The interplay between the WTO and the WIPO thus forms the basis for a number of recommendations for better governance of trade linkage areas.
Economic Partnership Agreements: Tariff Cuts, Revenue Losses and Trade Diversion in Sub-Saharan Africa
Authors: Hallaert Jean-Jacques
Published: April 2022

In contrast to existing published literature that assumed the Economic Partnership Agreements (EPAs) tariff cuts, this paper uses the tariff cuts actually agreed by some African countries to quantify fiscal revenue losses from the EPAs and estimate potential trade diversion. It finds that the profile in the tariff cuts varies significantly across countries and that revenue losses are significant but spread over long transition periods. Using taxable imports instead of total imports (a standard method of the literature), in order to take into account tax breaks and preferences granted to other partners in regional groups, increases the estimated revenue losses. However, the potential trade diversion, a source of additional indirect revenue loss, could be significant.
Sowing the Seeds of Leadership: Brazil and the Agricultural Trade Negotiations of the Uruguay Round
Authors: Farias Rogério de Souza
Published: April 2022

Brazil is seen nowadays as a great promoter of international trade liberalization in agriculture. But that was not the reality until the early 1990s. Primary sources now available show that during the initial phases of the Uruguay Round of the General Agreement on Tariff and Trade (GATT) Brazil worked against agricultural trade negotiations, despite being one of the original participants of the Cairns Group coalition and an important agricultural exporter. This article will examine why the country had this position and what explain its transformation.
Measuring the Challenge: The Most Favoured Treatment Clause in the Economic Partnership Agreements between the European Community and African, Caribbean and Pacific Countries
Authors: Hovius Christopher , Oettli Jean-René
Published: April 2022

In recent years, the European Community (EC) has concluded several trade agreements with several African, Caribbean, and Pacific (ACP) countries. These agreements, designed as a means to help eradicate poverty through trade and development, are known as Economic Partnership Agreements (EPAs) and provide ACP countries with preferential and differential trade benefits. Each agreement contains most favoured nation (MFN) clauses, providing that the EC must be accorded any more favourable treatment that an ACP country grants to certain third states not party to the EPA falling within the agreement's definition of a 'major trading economy'. These third states, or 'major trading economies', include less developed emerging economic powers. This paper examines potential challenges to the EPAs' MFN clauses, providing an in-depth factual analysis of the MFN clauses and a determination of possible ways for disputes to arise mainly under World Trade Organization (WTO) law and, to a lesser extent, within the EPA dispute resolutions provisions. The major case study is the MFN clause contained in the EC-Caribbean Forum (CARIFORUM) agreement, but the similarities in MFN provisions make the arguments generally applicable across the spectrum of EPAs concluded between the EC and ACP countries.
Market Access for Small versus Large Service Enterprises: The Preferential and Multilateral Trade Liberalization Tracks Compared
Authors: Persin Daniela
Published: April 2022

Political economy theories of international trade predict the convergence of trade policy preferences between small and large exporting enterprises within a sector. However, this convergence does not generally occur in service trade, which restricts the way a service provider is allowed to supply a service across borders. By comparing the latest General Agreement on Trade in Services (GATS) offers with the new preferential services trade agreements of the 2000s, this paper explores the extent each liberalization track provides market access in modes of supply preferred by either small or large enterprises. It finds that the preferential track is more likely to level the playing field between the two.
Threat of Injury in Anti-dumping Investigations: Some Comments on the Current Practice at EU and WTO Level
Authors: Dascalescu Florin Dorian
Published: April 2022

The imposition of anti-dumping measures under the World Trade Organization (WTO) rules requires three main conditions: the existence of dumping, material injury and the nexus between dumped imports and the damage inflicted to the domestic industry. One of the three possible forms of material injury is threat of injury. The threat of injury claim represents a preventive mechanism that prompts the investigating authorities to act before actual material injury is inflicted on the domestic industry. The major difficulty in assessing a threat of injury claim resides in the prospective nature of the investigating authorities' analysis. Since material injury has not yet occurred at the moment of the analysis, the investigating authorities must determine whether, based on the facts available, material injury is likely to occur in the near future. In order to prevent speculation and abuse, the WTO Anti-dumping Agreement sets forth the elements to be considered for the prospective assessment, such as an analysis based on evidence and facts, a clearly foreseen and imminent change in circumstances, and the economic factors relevant for the determination. The WTO case law adds to these rules, making it clear that the situation of the domestic industry prior to the initiation also plays a role in the prospective analysis. Nevertheless, important matters occurring in practice during anti-dumping investigations at European Union (EU) level remained currently unaddressed. The most significant is the choice of the reference period that stands as a basis for the investigating authority's analysis, cumulation of imports from several countries in threat of injury investigations and calculation of the injury margin. This article aims at addressing these issues based on a recent anti-dumping investigation finalized in September 2009, Seamless Tubes, and scrutinizes whether the European Institutions' approach in this case was in accordance with the WTO standards.
Firm Lobbying and EU Trade Policymaking: Reflections on the Anti-Dumping Case against Chinese and Vietnamese Shoes (20052011)
Authors: Eckhardt Jappe
Published: April 2022

It is an accepted view in the trade policy literature that those who lose from external trade are much more easily mobilized politically than those benefiting from it. As a consequence, the argument goes that there is an overrepresentation of protectionist interests in the political arena and a persistent pressure on policymakers to shield their markets from foreign competition. However, I argue that under certain circumstances, importdependent firms may very well be able and willing to mobilize politically and defend their anti-protectionist trade interests in the political arena. I will use the recent European Union (EU) anti-dumping case against Chinese and Vietnamese shoes to illustrate my argument.
EU Lobbying and Anti-Dumping Policy
Authors: Svendsen Gert Tinggaard , Nielsen Jørgen Ulff-Møller
Published: April 2022

Lobbying in the EU is difficult to measure. It varies in intensity and modes of expression across different policy areas and EU countries. By looking at a specific EU policy area, this paper suggests to measure differences in the lobbying activity across EU countries by the combination of petitioning firms and Council voting in the case of anti-dumping (AD) policy. If the political position of countries in anti-dumping cases is influenced by domestic lobbying efforts, we expect that the empirical pattern of country distribution of petitioning firms in EU anti-dumping cases corresponds closely to the empirical pattern of EU country distribution in Council voting. Our results show a low petitioning intensity for anti-dumping investigations and a high voting intensity against anti-dumping measures in Northern Europe. Thus, it seems likely that domestic lobbying efforts have influenced the political position of countries in the special case of EU anti-dumping policy.
Aid for Trade and the Liberalization of Trade
Authors: Hoekstra Ruth , Koopmann Georg
Published: April 2022

The Aid for Trade (AfT) initiative has gained much popularity since its launch at the World Trade Organization (WTO)'s Ministerial Conference in 2005, and there are ongoing discussions on its effectiveness and potential to improve the integration of developing countries (DCs) into the world economy. This article contributes to the debate by analysing AfT in a political economy context. We find that the delivery of AfT is a precondition for trade reform and trade-enhancing rule-making in DCs and may cushion adjustment problems to trade liberalization. Accordingly, AfT can be a catalyst of trade reforms domestically and internationally.
The Presumption of Good Faith in the WTO As Such Cases: A Reformulation of the Mandatory/Discretionary Distinction as an Analytical Tool
Authors: Kang Jing
Published: April 2022

Historically, the mandatory/discretionary distinction has been used as a deference tool in the WTO 'as such' cases. In recent years, the distinction has experienced fundamental changes from a threshold consideration to an analytical tool, and its legal status and implication is increasingly subject to confusion and suspicion. This article proposes a reformulation of the distinction as an analytical tool. The proposal retains the rationale underlying the distinction, i.e. the presumption of good faith, and is formulated as an evidentiary technique that influences evidence evaluation. It has the prospect of serving the function of a deference tool while providing certainty and consistency to the jurisprudence of 'as such' cases.
The Dilemma of China as Respondent to Anti-Subsidy Proceedings: A Study of the First EU Anti-Subsidy Investigation against China
Authors: Qian Wenjie
Published: April 2022

The EU launched its first anti-subsidy investigation (the CFP case) against China on 17 April 2010.The CFP case has followed a similar approach to that of other WTO Members (such as the United States) vis-à-vis China. This paper analyzes the main issues in the CFP case: policy plans, loans and land-use rights. It is found that a mere allegation of government interference by the petitioners can trigger a request for nation-wide information on company ownership and operations. This takes the scope of investigation far beyond the producers and exporters of the relevant product, encompassing nation-wide providers of credit, raw materials, electricity and land. Any shortfall in the amount of information provided can instantly lead the investigating authority to apply 'facts available' when making decisions. This practice is inconsistent with the Agreement on Subsidies and Countervailing Measures (SCM Agreement), as it aims to deal with government activities only. An unfairly high burden of proof was also imposed on China in the CFP case. Solutions are proposed in conclusion for a return to fair and legal anti-subsidy practices.
Unexpected Usage of Enabling Clause? Proliferation of Bilateral Trade Agreements in Asia
Authors: Hamanaka Shintaro
Published: April 2022

In forming Regional Trade Agreements (RTAs), developing countries mainly have two legal options: GATT Article XXIV and the Enabling Clause. The latter provision can be used when the RTA involves only developing countries.The way the Enabling Clause is used by developing countries in Asia is very different from other regions. Outside Asia, the Enabling Clause is usually used to form a plurilateral RTA that have an accession clause, which envisages gradual evolution into a (sub)region-wide cooperative agreement. In contrast, in Asia, developing counties started to use the Enabling Clause to sign bilateral RTAs after 2000. Such an innovative way of using the Enabling Clause is one of the contributory factors to the recent proliferation of RTAs in Asia. This paper also considers the implications of the proliferation of Enabling Clause-based RTAs to the ongoing policy discussions on the 'systemic issues' of RTAs at the World Trade Organization (WTO).
The Future of the Culture and Trade Debate: A Legal Outlook
Authors: Neuwirth Rostam J.
Published: April 2022

Throughout the twentieth century, the culture and trade debate evolved in parallel with related concepts, such as cultural industries, cultural specificity and cultural diversity. Traditionally, the dominant regulatory method in approaching the relationship between cultural concerns, on the one hand, and of trade concerns, on the other, consisted in the formulation of general or particular exceptions aimed at separating culture from trade. Gradually, and backed by drastic technological advances transforming the nature of economic offerings particularly in the area of the pioneering cultural industries, the traditional regulatory method shifted towards a more inclusive approach using so-called integration clauses. In practical terms, however, the dominant regulatory approach changed from 'exclusive inclusion' to 'inclusive exclusion', given that the greater integration of cultural concerns in commercial contexts at the level of substantive law was, at the international level, not matched by a major shift towards greater institutional coherence. As a possible remedy, the recent emergence of the concept of the 'creative economy' can be regarded as a new opportunity to rethink not only the scope and content of the cultural and trade debate but also the principal features of the role of law in tackling the important governance challenges that lie ahead.
Climate Change and Intellectual Property Rights for New Plant Varieties
Authors: Condon Bradly J.
Published: April 2022

Debates between developing and developed countries over access to technology to mitigate or adapt to climate change tend to overlook the importance of plant varieties. Climate change will increase the importance of the development of new plant varieties that can adapt to changing climactic conditions. This article compares Intellectual Property Rights (IPRs) for plant varieties in the World Trade Organization (WTO) Trade-Related Aspects of Intellectual Property (TRIPS) Agreement, the UPOV Convention and the Convention on Biological Diversity (CBD). It concludes that TRIPS Article 27.3(b) provides an appropriate degree of flexibility regarding the policy options available to confront climate change.
How General Should the GATT General Exceptions Be?: A Critique of the Common Intention Approach of Treaty Interpretation
Authors: Guan Wenwei
Published: April 2022

Through an analysis of the general exception jurisprudence in China-Raw Materials, this paper offers a critique of the 'common intention' approach of treaty interpretation that asserts members' common intentions via the Vienna Convention as the customary interpretative rules. As the paper will reveal, misled by the confusion developed previously on China's trading rights commitments, the Panel and Appellate Body failed to recognize the unforeseeable nature of general exceptions. Beginning with a misinterpretation of how an accession protocol forms 'an integral part of the WTO Agreement', the common intention approach carries a clear judicial activist tendency. Moreover, this activist approach reveals an 'origin-seeking retrospective' mechanism that locates 'common intentions' statically at the founding moment of the treaty framework, causing a failure to apply the contingency measures that balance the rigidity of the regime. The approach's failure to acknowledge differences and flexibility further undermines WTO legitimacy. Its contractarian obsession with 'common intentions' as a quest for legitimate consent fails on its own terms. This paper therefore calls for extreme caution to be applied to the 'common intention' approach and its judicial activism tendency, to allow a more dynamic understanding of evolving 'common intentions' that ensures future growth of the WTO regime.
WTO Retaliation Rules in Subsidy-Related Cases: What Can We Learn from the US-Upland Cotton Arbitration?
Authors: Guan Song
Published: April 2022

Retaliation serves as the remedy of last resort in the WTO Dispute Settlement System. In subsidy-related cases, retaliation becomes an option for an injured Member when the offending Member fails to withdraw the prohibited or actionable subsidy, or fails to remove the adverse effect of the actionable subsidy within the required time. This article provides an in-depth overview of retaliation in subsidy-related cases and advocates that 'inducing compliance' should be the goal of retaliation in WTO dispute settlement. To achieve this, the article analyses two main factors relating to the retaliation rules in subsidy-related cases, namely, the determination of the level of retaliation and the principles and procedures for retaliation and cross-retaliation. It also examines how the WTO arbitrators apply the rules in real-case scenarios, using the case of US-Upland Cotton as an example. In the process, the US-Upland Cotton (Article 22.6-US) arbitration decision is shown to have introduced six major developments to the WTO dispute settlement system.
Importing Growth: The Critical Role of Imports in a Trade-Led Growth Strategy
Authors: Hallaert Jean-Jacques
Published: April 2022

Most trade-led growth strategies focus on exports. This article argues that they should not overlook imports for two main reasons. First, imports are an important determinant of export performance. Therefore, the success of an export-led growth strategy will be reduced if it only focuses on exports promotion and ignores barriers to imports. Second, there is abundant evidence that imports also foster productivity. Therefore, imports contribute to growth directly by stimulating productivity and indirectly by increasing export performance, making them a key component of a trade-led growth strategy. This article also elaborates on the channels through which imports affects growth and investigates if the export and growth impact of imports is limited to imports of goods.
Dispute Resolution in Investment Treaties: Balancing the Rights of Investors and Host States
Authors: He Ling Ling , Sappideen Razeen
Published: April 2022

Bilateral and multilateral investment treaties permit investors to bypass the courts of their host States and have their investment disputes resolved through arbitration. Challenges e.g., by Phillip Morris to the Australian government plain packaging of cigarettes legislation, has caused a rethink of the appropriateness of arbitration as the means of resolving investor state disputes. New and better ways of balancing the rights of States to legislate in the public interest of their citizens on the one hand, and protecting investor property rights on the other are being sought out. This paper argues that the preferred way of achieving this needed balance is through the enactment of a general exception in the form of Article XX of GATT and Article XIV of GATS, which is incorporated into an international convention, and made applicable by incorporation to all bilateral and multilateral investment agreements.
Handling WTO Disputes with the Private Sector: The Triumphant Brazilian Experience
Authors: Bahri Amrita
Published: April 2022

Multiple scholarly works have argued that developing country Members of World Trade Organization (WTO) should enhance their dispute settlement capacity to successfully and cost effectively navigate the system of WTO Dispute Settlement Understanding (DSU). It is one thing to be a part of WTO agreements and know the WTO rules, and another to know how to use and take advantage of those agreements and rules in practice. The present investigation seeks to conduct a detailed examination of the latter with a specific focus on critically examining public private partnership (PPP) strategies that can enable developing countries to effectively utilize the provisions of WTO DSU. To achieve this purpose, the article examines how Brazil, one of the most active DSU users among developing countries, has strengthened its DSU participation by engaging its private stakeholders during the management of WTO disputes. The identification and evaluation of the PPP strategies employed by the government and industries in Brazil may prompt other developing countries to determine their individual approach towards PPP for the handling of WTO disputes.
The 2016 European Union International Procurement Instruments Amendments to the 2012 Buy European Proposal: A Retrospective Assessment of Its Prospects
Authors: Dawar Kamala
Published: April 2022

This article assesses the European Commission’s 2016 Amended Proposal for ‘a Regulation of the European Parliament and of the Council on the access of third-country goods and services to the Union’s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries’.1 The proposed regulation aims to improve the conditions under which European Union (EU) businesses can compete for public contracts abroad. It provides the EU with leverage through imposing a price penalty on any tender for an EU procurement which is originating in a country that does not offer the EU ‘reciprocity’ in access to its procurement markets.

After introducing the 2016 International Procurement Instrument (IPI) Amended Proposal, the article examines the legal framework of the Amended Proposal with reference to its evolution from the European Commission’s original 2012 proposed regulation. The analysis then turns to the concept of reciprocity, which serves as the justificatory basis of the Commission’s proposal before assessing the 2016 Amended Proposal’s compatibility with the EU’s commitments under the World Trade Organization (WTO), including most notably the World Trade Organization’s Government Procurement Agreement (WTO GPA), the General Agreement on Tariffs and Trade (GATT) and the Agreement on Subsidies and Countervailing Measures (ASCM). This assessment concludes by questioning the compatibility of this proposed regulation with the EU’s obligations under the WTO as well as the objectives of the EU procurement rules, underpinned by Treaty principles.
A New Haven Look at ASEANs Promotion of Transparency in Agri-food Trade
Authors: Wongkaew Thitirat
Published: April 2022

In a region where agriculture is the ‘backbone’ of national economies, where an annual gross domestic product (GDP) growth is estimated at over 5% and where potential consumers represent one fifth of the world population, sanitary and phytosanitary (SPS) measures of the Association of Southeast Asian Nations (ASEAN) tend to be employed not only for public health protection purposes, but also for advantaging national industries. To minimize abusive uses of such measures, it is necessary to have a clear picture of applicable SPS requirements and regulations. From a policy-oriented perspective, the paper examines ASEAN’s contributions to the promotion of transparency in agri-food trade under the World Trade Organization (WTO) regime and clarifies problems likely to cause regulatory protectionism. Considering the current trend of cooperation, it also reviews SPS-related transparency provisions in free trade agreements (FTAs), before suggesting that ASEAN’s decision-makers have a closer look at the Japanese FTA model for inspiration, with a view to establishing provisions having non-discriminatory effects on third parties in their future agreements.
Do the Same Conditions Ever Prevail? Globalizing National Regulation for International Trade
Authors: Lydgate Emily
Published: April 2022

Countries craft their regulations in a specific national context. When foreign exporters apply this regulation to achieve market access, it becomes subject to a global array of implementation conditions. Several World Trade Organization (WTO) disputes have ruled that regulation failed to acknowledge the conditions of foreign exporters. The WTO Appellate Body has suggested that comparing conditions or ‘situations’ is part of not discriminating between foreign and domestic products, but the implications remain vague. In fact, pulling too hard on this thread could unravel the non-discrimination principle as it leads to its inherent contradiction: regulation will never treat all trade partners exactly the same precisely because of their diverse conditions. Further, suggesting that it should put a huge undue burden on regulators: deep integration run amok. Key WTO environment and development controversies centre on how to acknowledge differences between countries’ situations and still achieve the formal equality that the system promises. The case law on situational discrimination feeds into these debates. This article proposes that the focus should be on how different situations influence the comparative effectiveness of a regulation in meeting its goal, an approach which delimits and clarifies.
Free Trade Agreements and Regulatory Change: Examples from the Generic and Biosimilar Sectors
Authors: Dolle Tobias , Vergano Paolo R.
Published: April 2022

Comprehensive free trade agreements (FTAs) have increasing importance and impact on domestic legislation and significantly affect regulated industries, such as pharmaceuticals. Recent FTAs include provisions on regulatory cooperation and convergence, as well as intellectual property provisions going well beyond the scope of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). These rules have particular importance for the generic and biosimilar medicines’ sectors and have important links to public health objectives. A growing number of sectors are covered by the substantive provisions of FTAs, often by means of dedicated and sector-specific rules and chapters catering to country- and/or industry-specific needs and interests. The article provides the relevant background in terms of trade law, trade negotiations and FTA trends, particularly as they relate to intellectual property rights and pharmaceuticals. The article places its core emphasis on the domestic impact of FTAs. Examples are drawn from the pharmaceutical sector of generic and biosimilar medicines. The potentially decisive impact of FTAs implies the necessity that all interested parties be more pro-actively involved in order to shape the future of the applicable legal frameworks, internationally and domestically.
Inside the Black Box: Political Economy of the Trans-Pacific Partnerships Encryption Clause
Authors: Liu Han-wei
Published: April 2022

Among other provisions of the Trans-Pacific Partnership (TPP) Agreement, a new clause on encryption technology (‘Encryption Clause’) is particularly noteworthy. By tracing the history of decades-long encryption control, this article underscores how this clause implicates international order. Modern encryption technology was conceived and developed during World Wars. Painted by such a war-time legacy, encryption has been treated as a ‘dual-use’ technology and has been subject to export control since the end of World War II via the Coordinating Committee for the Control of Multinational Trade (COCOM) and, later, the Wassenaar Arrangement. With the collapse of the Soviet Union, the Western bloc became divided on encryption policies. The US was most concerned with national security and once attempted to introduce the mandatory key escrow scheme to provide a level playing field for its high-tech industry. Resistance to the US’s hard line approach towards encryption at home and abroad led the nation to relax its export controls, thereby ending Crypto War 1.0. With the rise of emerging economies, however, Crypto War 2.0 is now resurfacing, and through the Encryption Clause, the US seeks to remove trade barriers that are hostile towards products employing foreign cryptography. Yet, underlying intellectual property right (IPR)(issues and the role of intelligence units in the formation of technical standards may once again move trade negotiations into the shadows.
Carbon Offsetting as a Trade Related Market Based Measure for Aircraft Engine Emissions
Authors: Abeyratne Ruwantissa
Published: April 2022

The 39th Assembly of International Civil Aviation Organization (ICAO), held from 27 September to 7 October 2016 adopted by consensus a Resolution on a Global Market Based Measure (GMBM) to address and mitigate the effects of aircraft engine emissions on the environment. According to the Resolution (which replaces Assembly Resolution A38-18 and which had some reservations of States attached to it), a GMBM scheme would be implemented in the form of a Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) to address any annual increase in total CO2 emissions from international civil aviation (i.e. civil aviation flights that depart in one country and arrive in a different country) above 2020 levels, taking into account Special Circumstances and Respective Capabilities (SCRC) of States. CORSIA would be implemented in three phases while accommodating SCRC, in particular of developing States, while at the same time minimizing market distortion. The Resolution was in response to a specification in Resolution A38-18 adopted at the Assembly three years earlier which required the Assembly in 2016 to develop a GMBM scheme. It took six years, from the 37th Assembly in 2010 (which required the Council to explore the feasibility and modalities of a GMBM scheme) to the 39th Session in 2016 for ICAO to come up with a scheme, which, until 2024 would be a voluntary pilot scheme that would not be an active GMBM. Thereafter, through 2027 the scheme would still be semi experimental. In the meanwhile, pollution caused by engine emissions would exponentially grow over the next ten years. This article examines the latest ICAO effort against its historical background and evolution, together with a discussion on its effectiveness from a legal perspective.
Regulating Currency Manipulation: Political, Legal and Economic Barriers to Reform
Authors: Wong Christopher S.
Published: April 2022

The current international legal framework for trade is not designed to explicitly address the issue of currency manipulation. This oversight in the framework has contributed to the proliferation of nations employing currency manipulation as a mechanism to aid their export competitiveness. This article adds to the current debate surrounding currency manipulation by analysing a number of proposed reforms to the current international legal framework aimed at addressing the issue. These reform proposals will be evaluated against a number of political and legal challenges that face any reform initiative. By examining the broader political and diplomatic considerations that would underpin any attempt at reform, the article concludes that there are significant barriers to preventing the practice of currency manipulation.
Revolutionary Cuba and the GATT/WTO System
Authors: Jones Kent
Published: April 2022

Cuba was a charter signatory of the GATT, transitioning to WTO membership in 1995. After its 1959 revolution, it sought to achieve economic independence from the US, and traded mainly outside GATT rules, in barter arrangements with the Soviet Union and later with Venezuela. This article investigates why Cuba chose to remain in the GATT and WTO as a centrally planned economy. GATT and WTO documents reveal that Cuba sought to gain influence among developing countries as a critic of existing trade rules and negotiations, while attempting to retain or seek new rules-based multilateral channels of market access. Yet Cuba has not been able to avoid dependence on major trading partners and a limited range of exports, as the collapse of the Soviet system, and the political deterioration in Venezuela led to major declines in Cuban exports and economic crisis. However, Cuba has begun to diversify its exports and expand its trade partnerships, and its trade interests now align more closely with WTO rules and negotiating agendas. Cuba will, however, need to implement domestic reforms and increased openness to global markets in order to realize the economic benefits of WTO membership.
Future of Trans-Pacific Partnership Agreement: Just a Dead Trade Initiative or a Meaningful Model for the North-South Economic and Trade Integration?
Authors: Lee Yong-Shik
Published: April 2022

The conclusion of the Trans-Pacific Partnership Agreement (TPP) among twelve trading nations in the Asian-Pacific region heralded the birth of the largest free trade agreement of all regional trade agreements (RTAs) in terms of the gross national product and trade size of the participating countries. However, the United States President, Donald Trump, radically changed this prospect by withdrawing the United States from TPP, shortly after taking office in January 2017. This is an ironic turn of history, because prior Obama administration had considered TPP to be its new trade platform in the Asian-Pacific region and pushed for its conclusion. This article discusses the possible future scenarios of TPP post the exit of the United States. TPP is also unique in its membership comprised of both developed- and developing-country members in nearly equal numbers. This article also examines whether TPP, regardless of its future life, presents a meaningful model for the North-South economic and trade integration.
Deafening Silence or Noisy Whisper: Omission Bias and Foregone Revenue Under the WTO Agreement on Subsidies and Countervailing Measures
Authors: Collins David , Park Tae Jung
Published: April 2022

This article applies the behavioural economics theory of Omission Bias to the Agreement on Subsidies and Countervailing Measures (ASCM) of the World Trade Organization (WTO), assessing whether WTO and Appellate Body’s assessment of ‘foregone revenue’ as illegal subsidies indicate a bias against finding culpability in omissions as distinct from commissions. Using available case law, the article shows that there is no evidence of Omission Bias among WTO adjudicator’s in terms of their rulings, but rather the case law discloses evidentiary and practical problems which may prevent the instigating and enforcing of claims of this nature. Specifically the test for this kind of subsidization is complex and its application is frustrated by the lack of tax expertise among WTO panellists and Appellate Body members as well as the opacity in many countries’ revenue and tax incentive regimes. The article concludes by acknowledging the need for greater transparency in domestic revenue laws and the more ready use of expertise in tax relief cases in the WTO dispute settlement system.
Principles for Post-War International Economic Cooperation
Authors: Hoffman Michael E.S.
Published: April 2022

At the close of the Second World War, American officials, in concert with their allies in the United Kingdom and elsewhere, set out to remake the machinery of international commerce. They did so not as naive globalists, but as desperate realists – realists who had survived the Great Depression and the second great war of the century. In designing the framework that would govern post-war international economic policy, American leaders and technocrats adhered to a set of essential principles. These principles had emerged from their hard-earned experience during the breakdown of global cooperation in the interwar years and the staggering bloodshed of the war itself. A careful review of the substance of negotiations over the formation of the International Monetary Fund (IMF) and the General Agreement on Tariffs and Trade (GATT), and political communications by US officials in support of those institutions – including essays, speeches, and testimony before Congress – suggests a set of vital and, perhaps, enduring principles that won the day: multilateral coordination, liberalization, mutual benefit-mutual responsibility, and economy = security. To American leaders these principles were abundantly evident. Their task was to persuade their domestic and international peers of the necessity of these principles and to put them into action. Ultimately they created a set of interlocking multilateral institutions to facilitate global commerce and global peace.
The Driving Forces of the Convergence of WTO Dispute Settlement Mechanism and International Investment Arbitration
Authors: Li Fenghua
Published: April 2022

Contemporary jurisprudence of international adjudication has seen an emerging trend of the convergence of WTO dispute settlement mechanism (DSM) and international investment arbitration (IIA). Although there is currently a scarcity of a general conceptual framework for the convergence, which leads to an ambiguous threshold of resemblance, interaction or integration that can be considered to form or indicate the convergence, it has become evident by now that the convergence, both extant and emerging, has been and is being promoted directly or indirectly by a number of driving forces. Economic reality that increases the inter-linkage between trade and investment, the confluence of public and private international law, the homogeneity of trade and investment dispute resolution and the utilization of WTO DSM and IIA as complementary tools to enforce trade and investment commitments are arguably four primary driving forces that are able to converge WTO DSM and IIA.
In Search of an Effective Trade Policy for the Film Industry: Lessons from Korea
Authors: Messerlin Patrick , Parc Jimmyn
Published: April 2022

This article explores which trade-related policies are effective – that is both economically and culturally sound – to promote the film industry that has recently been highlighted more due to its prominent political, economic and cultural dimensions. By examining the trade-related policies of nine major countries for their film industries over the last forty years, several important findings are extracted which contribute towards a more pragmatic debate on ‘trade and culture’. First, regulatory barriers such as import or screen quotas should be avoided at all costs since they do not protect the domestic film industry. Second, tax relief schemes are unreliable because they tend to offer excessive support to attract foreign film producers. Third, as a choice to be considered, subsidies should be kept reasonable in size and focus on consistent goals. Fourth, well-designed trade agreements can contribute greatly to enhance film policies. Finally, once combined, these results explain to a large extent the remarkable success of the Korean film industry over the last two decades, which can be a good bench marker for countries that want to enhance their film industry and to promote their culture.
Lessons from a Survey of Chinas Economic Diplomacy
Authors: Aminkeng Gilbert A. A. , Asongu Simplice A. , Nwachukwu Jacinta C.
Published: April 2022

Today, the West faces a considerable dilemma in their support for the Washington Consensus as a dominant approach for development because the Beijing model has grown to become an unavoidable process which can only be neglected at the cost of standing on the wrong side of economic history. The Washington Consensus, the hitherto dominant scheme, is being encroached on by the Beijing model. Many African nations are increasingly embracing this latter method because the prevailing Western model has failed to deliver on a number of objectives. This is increasingly evident because China’s economic diplomacy has been politely and strategically coined to achieve it. A case study is used herein to articulate the different strands of the survey. The article puts some structure on China’s economic diplomatic strategies and discusses lessons for Africa, China and the West. It contributes to existing literature by critically assessing why it is necessary for the West to modify the conception and definition of the Washington Consensus as a counterpart to the Beijing model. In order to remain relevant in the twenty-first century and beyond, the Washington Consensus should incorporate those ideas which are in conformity with Moyo’s (2013) conjecture. This postulates that, while the Beijing model is optimal in the short-run, the Washington Consensus remains the ideal long-term development model because it is more inclusive of the rights demanded by individuals at different income categories.
Dispute Resolution Mechanisms and Organizations in the Implementation of One Belt, One Road Initiative: Whence and Whither
Authors: Huang Jie (Jeanne) , Hu Jiaxiang
Published: April 2022

The existing dispute settlement mechanisms in the treaties concluded by China and under Chinese domestic law are insufficient to resolve all disputes related to the ‘One Belt, One Road (OBOR)’ Initiative. It is critically important for China to design dispute settlement mechanisms and organizations to facilitate the OBOR Initiative. This article suggests, for trade disputes, the first choice should be to refer the disputes between WTO members to the Dispute Settlement Body. The regional trade regimes may function as supplements. Investment disputes may be submitted to investor-state dispute resolution mechanisms including the ICSID under BITs. In the case of financial disputes, the newly established Asian Infrastructure Investment Bank may provide a platform for its members to settle their disputes. As for those countries which have neither acceded to the WTO nor joined other regional trade regimes, nor signed any FTAs or BITs with China, China may settle the disputes with them through government agreements like protocols, or refer the disputes either to domestic judicial bodies or to arbitration. The purpose for this is to ensure that dispute settlement under the OBOR Initiative will be more economical, efficient and enforceable.
Do WTO Commitments Restrict the Policy Space of Countries Wishing to Provide Food Security Through Stockholding Programs?
Authors: Nakuja Tekuni
Published: April 2022

The use of administered prices to acquire public stockholdings for food security purposes has become contentious among WTO members. G-33 countries have proposed that existing limits be lifted while other WTO members have not acquiesced. This impasse has threatened the success of WTO Ministerial Meetings in both Bali and Nairobi. Currently, a Peace Clause pertaining to cases being brought to the disputes settlement system has been agreed while members seek a permanent solution. The debate over public stockholdings, however, is being conducted with limited information – in particular whether the WTO de minimis limits restrict the policy space for developing countries pursuing food security goals. This article examines the restrictiveness of the limits on G-33 countries. Using conservative assumptions, it finds that for high food security risk G-33 countries the current de minimis levels are constraining. They are less constraining on medium and low food security risk countries. As a result, the policy space for some developing countries is restricted. The results also suggest that the current ‘one size fits all’ limits may not be appropriate and could be replaced by a flexible system.
Can the WTO Bring More Teeth to the Global Anticorruption Agenda?
Authors: Silveira Luciana Dutra De Oliveira
Published: April 2022

In 1997, the Lima Declaration against Corruption made the first institutional cry to the World Trade Organization (WTO) to address the issue of corruption in international trade. In fact, international trade bears critical vulnerabilities to corruption, particularly concerning Customs interactions with private stakeholders and government procurement procedures. Corruption, in turn, hinders economic development, increases the cost of trading goods and services, and undermines the main objectives of the WTO. This article shows that, since 2012, the WTO has increasingly adopted a more clear-cut approach to this problem and finally took an open stand regarding the relationship of anticorruption measures and trade in its dispute settlement system. The revised text of the Government Procurement Agreement, the Trade Facilitation Agreement, and recent WTO cases like Colombia – Textile, illustrate some of the anticorruption principles, tools, and rulings within WTO context. Considering that anticorruption laws and WTO trade rules are mutually supportive and together contribute to a more effective fight against corruption, this article argues for the incorporation of the anticorruption mandates and values within the WTO through soft law initiatives. The actions suggested herein will bring more teeth to the global anticorruption agenda and reaffirm the importance of trade liberalization.
Brexit Trade Impacts and Mercosurs Negotiations with Europe
Authors: Nogués Julio J.
Published: April 2022

We estimate that a hard Brexit (HB) would reduce UK agro-industrial-imports from the EU by around 50%. Following the dismantling of the Common Agricultural Policy (CAP) the UK Government has proposed to shift towards market-oriented agricultural policies and negotiating free trade agreements (FTAs) with interested countries. Members of Mercosur would then face two negotiations in Europe: with the EU27 and with the UK. How should they allocate their scarce negotiating resources and where should they invest their political capital? For a number of reasons discussed in the text we argue that: (1) negotiations with the EU are unlikely to deliver market access much in excess of what it has offered so far; (2) unlike these negotiations that have dragged for around twenty years, there are circumstances indicating that in the event of Brexit, an FTA with the UK could be completed in a relatively short period and, (3) failing Mercosur to give these talks priority, other countries are more than likely to sign trade agreements with the UK and fill its import gap thus creating additional trade diversion effects against its Members. We offer back-of-the-envelope estimates indicating that under such an FTA, Mercosur could double its agro-industrial exports to the UK