bluuebunny/crossref_metadata_2025_split huggingface dataset:
Clearing the Smoke: The Legitimation of Judicial Power at the WTO
Authors: Shlomo-Agon Sivan 
Published: April 2022

What role, if any, does the search for judicial legitimacy play in judgments rendered by the World Trade Organization (WTO) Dispute Settlement System (DSS)? And with which audiences, and through which judicial means does the WTO DSS try to communicate in order to sustain its legitimacy? Empirical evidence generated through semi-structured interviews with WTO practitioners demonstrate that since its inception, the interstate WTO DSS has been engaged in a continuing quest for legitimacy amidst multiple audiences, well beyond WTO Member States. This quest – prominent in the dispute-category known as ‘trade-and’ disputes – has manifested itself in both the rhetorical, procedural, and substantive judicial choices taken by WTO adjudicators. Also, this quest has not been static, but rather dynamic in nature, whereas in response to some audiences’ demands, jurisprudential, procedural and rhetorical readjustments have been made along the way. The article demonstrates these assertions through discursive analysis of the recent US-Clove Cigarettes dispute, while revisiting several earlier jurisprudential milestones on the DSS’ road to legitimacy. Coupling this analysis with insiders’ views, the article sheds a novel empirical light on how the DSS’ legitimacy challenges in ‘trade-and’ disputes are experienced ‘from within’, and the manner in which they are subsequently weaved into the choices taken by WTO adjudicators in their strategic judicial space. [M]ost adjudicators have a sense at an intuitive level as to what the main elements of ‘legitimacy’ are. One would be transparency, due process… consistency with existing case law, like arguments being treated the same way….And one of those things… would be understanding the audience… knowing who the audience is for a particular type of decision and drafting the decision, at least stylistically in some respects, in a way that the audience will perceive it as being legitimate, and the audience for a dumping case will be different from the audience for US-Clove Cigarettes. Interview with WTO official, 13 March 2012, Geneva
Chinas Nonmarket Economy Treatment and US Trade Remedy Actions
Authors: Lee Jieun 
Published: April 2022

The price comparability provision of China’s accession protocol recognizes that WTO members may face special difficulty in determining subsidies and dumping from China, due to its government’s pervasive intervention in the economy. The provision permits importing members to disregard domestic prices or costs in China and to use alternative benchmarks in determining the normal value of Chinese exports. Consequently, this so-called nonmarket economy (NME) methodology tends to inflate antidumping and countervailing duty rates. Certain paragraphs of the provision determining dumping expire on 11 December 2016, and yet the heated debate on China’s economic status post-December 2016 remains ongoing. This article studies the history of US trade remedy actions against nonmarket economies and traces recent developments and findings at the WTO dispute settlement body. Congressional history shows that antidumping regulations in the US have been constantly amended to catch up with agency practices that discriminate against nonmarket economies. Meanwhile, the Department of Commerce (DOC) recently started to apply countervailing duties on Chinese imports and has finally codified such practices into law. The article offers many reasons to believe that the US is equipped with various trade remedy measures to continue ‘special treatment’ against China, even if the country graduates from a NME status.
Internet, Industry and International Trade: Digital Tradability in Services
Authors: Robbins Mark 
Published: April 2022

Rising use of digital technologies in the service sector is altering the rules of economic governance and of international trade. Theories of economic development and political economy, such as world-systems theory and Petty’s Law, are being contested by the digital revolution. As technological advances bypass old theory, the service sector is locating globally, with decreasing regard for geography and the assumptions of the old international economic order. This presents new challenges for a legal, commercial and international trade norms and system, which are designed to facilitate tangible cross-border commerce. Old theories of political economy must be revisited to account for the rise of digitally traded services and some, like Petty’s Law, may not survive emergent conditions. The services trade itself is inadequately considered in official government policy, and by international organizations seeking to promote trade, investment and greater cooperation. This work critically evaluates the policy initiatives of major players in trade in light of these trends in the digital economy. While economic institutions claim to advocate policies that are up to date with the new reality of trade, their approaches are still grounded in the superseded economic theories of the twentieth century.
Regulating the State Capitalism: Is There an Optimal Regulatory Model for Sovereign Wealth Fund Investment?
Authors: Yin Wei 
Published: April 2022

The sovereign wealth funds (SWFs), as the rise of ‘state capitalism’, are shaping the current political arena and global economic order. Questions have been raised with regard to the motivation of these funds and the plausible regulatory responses to this phenomenon. After a brief review of SWF investment in global markets and the literature review on the controversy surrounding SWFs, this article will examine critical points that need to be considered when regulating SWFs. It argues that legal measure should tackle specific issues but not discriminate the nature of state ownership. By considering subjective and objective elements, three general regulatory models and further suggestions for international regulation of SWFs are proposed and examined. The political economy dimension of SWFs may easily mislead the direction of the necessary legal response. Policymakers have to navigate between attracting foreign capital and protecting the legitimate national security. The article suggests that the rights and obligations of SWFs should be guaranteed and balanced. It finds that unilateral actions vary from jurisdiction to jurisdiction and there is no one-size-fits-all approach for every country while there could be a plausible approach via international regulation, i.e. incorporating soft law rules into hard law investment treaties.
Sovereign wealth funds, state capitalism, national security, state ownership, market access, international investment treaty, corporate governance, soft law
Litigating, Arbitrating and Mediating Japan–Korea Trade and Investment Tensions
Authors: Claxton James M. 
Published: April 2022

In July 2019, Japan introduced measures tightening export restrictions to South Korea on three chemicals critical to the manufacture of consumer electronics. The restrictions prompted an animated response by the Korean government that has included WTO consultations and threats to terminate an intelligence-sharing agreement with Japan. Meanwhile, the controversy has filtered down to the public with boycotts of Japanese products in Korea. Tension between the states has been unusually high since late 2018 when the Korean Supreme Court affirmed a judgment against Japanese companies accused of forcing Korean nationals to labour for them during Japan’s colonial rule. Japan argues that such claims are precluded by a 1965 treaty normalizing post-war relations. While Japan states that its trade restrictions were not motivated by the judgment, the disputes have together contributed to the worst breakdown in cross-border relations in five decades. This article evaluates Korea’s trade claims against Japan, means of resolving them, and the challenges that the claims face in the WTO dispute settlement system. The article also considers claims from the Japanese side through the International Court of Justice (ICJ), inter-state arbitration, and investor-state dispute settlement. We conclude that formal mediation offers an effective means to facilitate negotiations and centralize the WTO and other treaty disputes in a single forum involving multiple stakeholders.
WTO, Japan, Korea, ISDS, mediation, arbitration, export, international trade law, investment treaties
National Security Exception in the General Agreement on Tariffs and Trade (GATT) and India–Pakistan Trade
Authors: Ranjan Prabhash 
Published: April 2022

India and Pakistan, two nuclear-armed South Asian neighbours who have shared a turbulent relationship for last seventy years, recently came close to almost fighting a war with each other. The recent terror attack in Pulwama in Kashmir by a terror group based in Pakistan, led India to revoke Pakistan’s most favoured nation (MFN) status under the World Trade Organization (WTO) by imposing 200%tariff rates on all Pakistani imports. This decision was followed by a limited military confrontation between the two countries. Such unilateral increase in the customs tariff rates violate India’s MFN obligation towards Pakistan. This article discusses whether India can justify this measure under Article XXI of GATT – the national security exception. The paper, in light of the scholarly commentary and the recent WTO Panel’s decision in the Russia – Transit case, discusses the key concepts of Article XXI and applies them to the India–Pakistan situation. The paper finds that while a situation of international emergency did exist between the two countries, the Indian measure cannot be justified under Article XXI of GATT.
India, Pakistan, National Security, Article XXI, GATT
Towards a New Treaty on Digital Trade
Authors: Burri Mira 
Published: April 2022

Digital trade is one of the very few areas of trade law, where one can observe a willingness shared by the international community to move forward and actively engage in new rule-making. The article contextualizes and explores this development by looking at the relevant e-commerce provisions in preferential agreements, in particularly by highlighting the legal innovation in the most advanced templates of the Comprehensive and Progressive Agreement for Transpacific Partnership (CPTPP) and the United States Mexico Canada Agreement (USMCA), as well as in dedicated digital trade agreements, such as the ones between the United States and Japan and between Chile, New Zealand and Singapore. The article then looks at the WTO negotiations and tries to identify points of convergence and divergence reflected in the latest negotiation proposals tabled by WTO members. It is the article’s objective to test these proposals, as to their potential to permit the adoption of a new treaty on digital trade and to their ability to adequately address the practical reality of the data-driven economy.
digital trade, electronic commerce, World Trade Organization, preferential trade agreements, data and data flows, CPTPP, USMCA, DEPA
Electronic Government Procurement in the EU-Vietnam Free Trade Agreement: An Opportunity for Increased Transparency and Accountability?
Authors: Kerr William A. , Khorana Sangeeta 
Published: April 2022

The use of electronic government procurement systems has grown in recent years. Policy makers are increasingly employing e-government procurement tools to generate competition, increase transparency, streamline procuring processes and cut red tape to improve governance. This article examines the rationale for e-government procurement provisions in bilateral trade agreements and highlights the benefits from using electronic systems. Using the case of the EU-Vietnam trade agreement we elaborate on how electronic government procurement can be a mechanism to enhance transparency and accountability, and reduce opportunities for corruption in Vietnam.
e-procurement, transparency, free trade agreements
One Step Forward and Two Steps Back? Evolution of Bilateral Safeguard Provisions in Preferential Trade Agreements
Authors: Xu Jia 
Published: April 2022

There is an emergence of including bilateral safeguard provisions in Preferential Trade Agreements (PTAs). Most PTAs embed bilateral safeguard provisions to buffer the risk of import surges caused by tariff reductions in the intra-PTA trade. These provisions can be applied only between the PTA members, and they mainly have legal effect during the transitional period of forming a customs union or a free trade area. These provisions are linguistically similar to the multilateral safeguard codes (MSCs), i.e., Article XIX General Agreement on Tariffs and Trade (GATT) and the Agreement on Safeguards (SA), some of them even directly incorporate or copy some of the language from MSCs. This article observes that these bilateral safeguard provisions reveal ‘evolving’ features and can be mapped into three generations. Aside from the great similarity as compared to the MSCs, in the Laissez-faire of PTAs, bilateral safeguard provisions deviate from the WTO rulings: on the one hand, they are more trade-friendly since they primarily limit the form of safeguard measures to tariffs, and the duration is significantly shorter; on the other hand, they deviate from the important value of WTO since the special and differential treatment for the developing countries are hardly addressed in the North-South PTAs, the same applies to the prohibition of ‘grey area’ measure.
bilateral safeguard, WTO, preferential trade agreement, ‘grey area’ measure, de minimis provision, special and differential treatment, Committee on Safeguards
Inadequacy of SCM Rules of Benefit Determination in the Context of Non-market Economies
Authors: Srinivas Kuna Harsha 
Published: April 2022

China’s decision to withdraw from the dispute pertaining to its Non-Market Economy (NME) status has bolstered the Member States’ intentions of resorting to stronger disciplinary actions against China and other NMEs. While anti-dumping measures have traditionally been pursued against NMEs, in recent years Member States have resorted to anti-subsidization measures as well. Even though the Appellate Body has warned against double counting, Member States continue to undertake Countervailing Duties (CVD) investigations against NMEs in addition to Anti-Dumping Duties (ADD) investigations. This article moves beyond the conventional discussions around double counting and attempts to determine whether the emphasis on antisubsidization measures against NMEs is justified. The paper focusses on the specifics of the Subsidies and Countervailing Measures (SCM) Agreement, particularly the rules on benefit determination. There have been instances where the Appellate Body has adopted innovative methods of benefit determination to deal with situations where governments’ actions have distorted the markets. Can these same rules be applied against NMEs? And if so, are they effective and do they factor in all aspects of market distortions in NMEs? This article attempts to answer these questions by relying on China as an example.
SCM Agreement, Benefit Determination, NME, NME Methodology, Alternative Benchmarks
A Curious Case of Unreasonable Profit: US – OCTG (Korea)
Authors: Lee Hyuntaik 
Published: April 2022

Anti-dumping investigations involve a highly technical process of dumping margin calculations that use voluminous and complex data. Investigating authorities often find that ideal sources of such data enabling accurate calculations are unavailable. While the WTO Anti-Dumping Agreement (ADA) sets out the basic rules on anti-dumping investigations, it provides a certain level of flexibility and discretion to investigating authorities. However, such flexibility may lead to disputes and abuse by investigating authorities. Article 2.2.2 of the ADA, which establishes the rules regarding the calculation of a reasonable amount of profit for constructed value, is one such example. The provision envisages situations in which the actual data of relevant profit are unavailable and provides three alternative sources of data to be used in such situations. In the US – OCTG (Korea) case in 2017, the key issue was the US investigating authority’s use of a controversial source for the calculation of a reasonable amount of profit under one such alternative. While the panel ruled that the US investigating authority’s use of the source was inconsistent with Article 2.2.2, the issues raised in the case and the difficult questions the panel did not answer laid bare the ambiguities and incoherence in the ADA that can be abused by investigating authorities.
WTO Anti-Dumping Agreement, WTO Panels, Constructed Value, CV Profit, USDOC, Anti-Dumping Investigation, US – OCTG (Korea), Reform, Best Information Available
The General Theory of the Natural Course of World Trade: Special Circumstances to Initiate Trade Remedy Investigations
Authors: Comnenus George Arie 
Published: April 2022

Via the Vienna Convention on the Law of Treaties, this article proposes a definition of the “special circumstances” that sanction authorities to self-initiate trade remedy proceedings per article 5.6 of the WTO Anti-dumping Agreement. In effect, it optimizes the world economy by enabling authorities to self-detect unfair trading practices – without a complaint of the domestic industry. This inability likely restrains trade remedies’ potential as a finer, more fruitful alternative for the indiscriminate imposition of bulk-tariffs – visible in the Sino-American trade war. Arguably, the “special circumstances” occur when the pace of country-specific import significantly exceeds the pace of the worldwide import, through significant price undercutting which stems from transnational price discrimination rather than a cost-efficient industry. To ascertain whether an absence of price discrimination is due to a particular market situation, the general theory introduces a new criterion. This criterion provides the first definition of “sales in the ordinary course of trade”, wholly derived from Article 2.2 of the WTO Anti-dumping Agreement.
trade remedies, initiation, dumping, special circumstances, particular market situation, price undercutting, ordinary course of trade
EU-Ukraine Arbitration: Will WTO Law Become More Deferential Outside the WTO?
Authors: Rovnov Yury 
Published: April 2022

The first dispute brought by the EU under its bilateral trade agreements, Ukraine – Export Restrictions on Wood, was in many respects a typical World Trade Organization (WTO) case. A panel of three arbitrators, including two prominent and highly experienced WTO adjudicators, was to rule on consistency of the respondent’s export bans with Articles XI and XX of the General Agreement on Tariffs and Trade, incorporated by reference into the EUUkraine Association Agreement. The latter, moreover, explicitly requires that arbitrators rely on the WTO jurisprudence – which they, technically, did. Yet, the arbitration panel appears to have shown more deference to the respondent than any WTO panel ever has (or would). By contrasting the reasoning of the arbitration panel with that of WTO panels deciding similar issues, the article questions whether WTO law may take a more deferential path outside the WTO.
WTO law, GATT, Article XX(b), EU-Ukraine Association Agreement, wood export ban, dispute settlement, judicial deference
The ‘Equivalent’ Standard in WTO Arbitrations of Trade Remedy Disputes
Authors: Kim Kyounghwa 
Published: April 2022

This article examines systemic issues arising from the calculation of the level of retaliation against WTO-inconsistent anti-dumping/countervailing duty (AD/CVD) ‘measures’ by focusing primarily on two Article 22.6 arbitration cases, i.e., US – Washing Machines (Article 22.6) and US – Anti-Dumping Methodologies (Article 22.6). The two cases show that trade remedy disputes make the choice of the ‘reasonable’ counterfactual difficult, and require careful consideration in analysing the reference period for the counterfactual scenario and the calculation of nullification or impairment, given the unique circumstances in which the aggrieved country is confronted by WTOinconsistent AD/CVD measures. The article also examines that the Armington-based partial equilibrium model employed in both arbitrations is a useful tool for calibrating the effect of a straightforward reduction in AD/CVD tariffs, but it does not elicit the ‘equivalent’ level of nullification or impairment (NOI) because of the assumptions and data used.
The ‘Equivalent’ Standard, WTO Article 22.6 Arbitration, Trade Remedy Disputes, US – Washing Machines (Article 22.6), US – Anti-Dumping Methodologies (Article 22.6)
The Interface Between Competition Policy and International Trade Liberalisation. Looking into the Future: Applying a New Virtual Anti-Trust Standard
Authors: Mehta Kirtikumar , Durand Benoît , Font Galarza Andrés 
Published: April 2022

The article contends that the case for the beneficial effects and rationale of the on-going trade policy expansion into the competition realm has already been proven and, apart from political aspects, exhausted. The authors take the reverse angle to approach the interface between trade and competition in a new and more challenging perspective. Could competition policy benefit from the trade policy contamination? Could modern competition policy improve its rigour and internal coherence as a result of an international convergence that will naturally try to shift and broaden the present competition legal paradigm? How would competition policy assess controversial anti-trust practices such as export cartels and certain vertical restraints under a new virtual global welfare standard? The authors use economic models to hint at a number of legal answers. The article is intended to trigger an innovative follow-up debate.
Toward an EU Competition Court: “Article-6-Proofing” Antitrust Proceedings before the Commission?
Authors: Andreangeli Arianna 
Published: April 2022

This article will assess the proposal made by the Confederation of British Industry (CBI) for the establishment of an “EU Competition court”, responsible primarily for the fast and effective review of merger decisions, and its implications for the judicial architecture and the wider institutional structure of the EU. It will argue that, rather than for merger control, the introduction of more exacting degree of judicial scrutiny, entrusted with a specialised court, may be necessary to secure the compliance of the EU antitrust enforcement proceedings with the notion of “administrative due process” enshrined in the European Convention on Human Rights.
However, the article will demonstrate that the creation of this judicial body, endowed with the necessary powers to ensure consistency with the Convention requirements, despite being an appropriate solution, might constitute too wide a departure from the judicial and overall institutional structure of the EU and could thus require a Treaty amendment, which could lack political support. It will suggest that instead of altering the judicial structure of the EU the whole system for the enforcement of the competition rules should be rethought to reconcile the need for speedy and final judicial scrutiny with the observance of “fairness” principles.