bluuebunny/crossref_metadata_2025_split huggingface dataset:
‘E-commerce’ for India in a Developing World: An Int’l Trade Law Perspective
Authors: Tiwari Saurabh , Chandra Ashish , Praveen Tanvi , Toshi Stuti 
Published: April 2022

Ever since internet has stepped in the domain of markets, the style of conducting commercial transactions has changed. E-Commerce transactions are very different from the everyday buying at the store transactions and they are gaining more significance by the day. Due to the everevolving technology driven nature of these e-markets, regulators across the globe are exploring ways to discipline them without causing much distortions. However, the job is more complicated than it appears. In these circumstances, while India is in the phase of drafting its National ECommerce Policy, its international forefront reflects carefulness in engaging in the ongoing negotiations. This article aims to explore the complexity of e-commerce from the international trade forefront and its implications for developing countries like India.
International Trade, Electronic Commerce, E-Commerce, Regulation, Developing Countries, Role of Regulators, Competition, Digital Trade.
Technology Transfer Under China’s Foreign Investment Regime: Does the WTO Provide a Solution?
Authors: Kong Qingjiang , Zhou Weihuan , Jiang Huiqin 
Published: April 2022

One of the most longstanding and significant issues in the US-China trade war and international trade regulation in general has been the so-called ‘forced’ technology transfer. To contribute to the ongoing debate over this issue, this article reviews the role of technology transfer in the evolution of China’s foreign direct investment (‘FDI’) regime over the past four decades and shows that the use of foreign investment to promote diffusion of advanced technology and knowhow in the Chinese economy has long been rooted in the heart of China’s FDI policy and remains fundamental for China’s transformation to an innovative economy. This pursuit of economic upgrade and technological advancement is not illegitimate as it is common for countries to use similar policies for similar objectives at different stages of economic development. The question is whether China has done so in breach of its WTO obligations. To answer this question, this article examines China’s new FDI regime and argues that while China has removed the controversial provisions in the relevant legislations, the regime leaves flexibility for China to ‘force’ technology transfer in practice, particularly under the security review and retaliation mechanisms envisaged in the new Foreign Investment Law (FIL). It is submitted that the best way to address these outstanding challenges would be through the dispute settlement mechanism (DSM) of the WTO as opposed to unilateral and confrontational approaches which have proven to be counter-productive. While WTO litigation is likely to be limited to ‘as applied’ claims in specific cases, systemic changes may result from a series of successful ‘piecemeal’ attacks over time. Given China’s broad WTO commitments on technology transfer, we call for an increasing use of the existing rules to address any laws and practices that ‘force’ technology transfer instead of negotiating new rules.
Technology Transfer, China, Foreign Investment Law, National Security, WTO, Accession Protocol, US-China Trade War
A New Trade Regime for the Servitization of Manufacturing: Rethinking the Goods-Services Dichotomy
Authors: Peng Shin-yi 
Published: April 2022

Moving toward the age of industry 4.0, the increasing complementarities between goods and services lead to questions regarding how the divided trade rules for goods and services will be applied. How does the servitization of manufacturing render such divides problematic? How can we determine the nature of a regulation when the measures in a dispute are components of a complex regulatory landscape? Is there a need to break down goods/services legal silos? If so, how do we treat goods and services together? This article expands upon the existing assertions from various angles, and in particular, the increasingly ‘dual nature’ of domestic regulations brought about by technological developments, as well as systematic problems related to the concurrent application of the goods/services trade rules. Just as the regulatory developments toward goods/services converge in many areas of law, international economic law (IEL) is now faced with challenges in surviving the myth of the goods/services dichotomy. Evidently, silo-based systems trigger a great level of legal uncertainty and inconsistency in the application of trade rules. The final part of this article further explores the ‘mission impossible’ migration to a new trade regime. There are positive lessons to be learned in terms of the convergence of goods/services governance from the experiences of the Regional Trade Agreements (RTAs). Political interest in moving away from the increasingly outmoded vertical silos, in placing trade policy on a more sure empirical footing, and in establishing a new overarching trading paradigm may increase over time.
Servitization, Industry 4.0, Goods-Services Dichotomy, Goods-Services Convergence, Dual Nature, Hybrid Measures, Domestic Regulation, Legal Silos.
Can the WEF Re-Connect the WTO to the Global Business Community?
Authors: Al Kanawati Nadja , Perera Nishadee 
Published: April 2022

As the World Trade Organization (‘WTO’) faces what may be an existential crisis and considers options for structural reform, a fundamental issue it needs to examine is maintaining its relevance for the business community. Recognizing that businesses are a key stakeholder in the system of global trade, one aspect of ensuring this relevance is continued and improved engagement with the business community. This article explores and recommends one possibility for such engagement: utilization of the World Economic Forum (‘WEF’).
The WEF prides itself on thorough stakeholder engagement, and arguably provides a more holistic representation of business community views. Although limitations to this notion are considered in the article, it is ultimately argued that the WTO should consult the WEF more regularly regarding matters of international trade regulation policy. In doing so, the WTO would be taking advantage of the WEF’s expertise, its existing investment into research and collaboration with major corporations, academics and government officials, as well as its unique structure that allows it to consider upcoming issues in an agile and adaptable manner. After considering stakeholder engagement structures in other fora, this article recommends an institutionalized mechanism to ensure repeated, systematic collaboration and accountability between the WTO and the WEF.
World Trade Organization, WTO, World Economic Forum, WEF, business community, stakeholder engagement, institutional change, collaboration, reform
EU Trade Agreements: To Mix or Not to Mix, That Is the Question
Authors: Puccio Laura , Conconi Paola , Herghelegiu Cristina 
Published: April 2022

The European Union (EU) can only act internationally on competences that have been transferred to it by its Member States. Trade agreements negotiated by the EU that include provisions outside its exclusive competences should be concluded as ‘mixed’. Mixed trade agreements must be ratified following not only the procedures set out in the EU treaties, but also the national ratification procedures of the Member States. As a result, national or even regional parliaments may block trade deals agreed between the EU and its trading partners after years of negotiations. Should the EU then avoid negotiating mixed trade agreements? We argue that the answer to this question depends crucially on the objectives of the EU when negotiating with its trading partners. If the EU is mostly driven by market-access motives, it should restrict the agreement to policy areas under its exclusive competence, thus insulating the trade deal from the legal and political risks of mixity. When instead its motives are mostly political, mixity is a ‘necessary evil’ to achieve non-trade objectives.
Trade Agreements, European Unity, Competences, Ratification Procedures
Facilitating Sustainable FDI for Sustainable Development in a WTO Investment Facilitation Framework: Four Concrete Proposals
Authors: Sauvat Karl P. , Gabor Evan 
Published: April 2022

Foreign direct investment (‘FDI’) can be an important vehicle for development. However, in recent years, the focus has not just been on development generally, but sustainable development specifically. Thus, this article focuses on how countries can increase levels of FDI geared toward projects likely to contribute as much as possible to countries’ sustainable development—in other words, how countries can increase flows of sustainable FDI. To that end, and in light of the World Trade Organization’s ongoing Structured Discussions on Investment Facilitation for Development, this article first discusses the notion of ‘sustainable FDI’ and then outlines four issues and related concrete proposals whose implementation through an investment facilitation framework for development would help to ensure that commercially viable FDI makes a besteffort contribution to sustainable development: (1) How can governments encourage sustainable FDI? (2) How can governments promote corporate social responsibility (‘CSR’)? (3) How can one create the special category of ‘Recognized Sustainable Investor’ to incentivize international investors to implement their CSR commitments and engage in sustainable FDI? (4) What role can home countries play in facilitating outward FDI flows, especially the flow of sustainable FDI? Looking at the question of a multilateral framework from the perspective of its objective— namely ‘for development’—is particularly important as this objective should guide the negotiations of such a framework.
sustainable FDI, sustainable development, WTO investment facilitation discussions, corporate social responsibility, home country policies, recognized sustainable investor
One Stone, Two Birds: Can China Leverage WTO Accession to Build the BRI?
Authors: Chaisse Julien , Kirkwood Jamieson 
Published: April 2022

The efficacy of the World Trade Organization (WTO), as an international forum seeking to provide a uniform platform to Member States for bilateral and multilateral negotiations and further the spirit of a new international economic legal order, is challenged constantly. This article explains how China is using the WTO accession process to leverage its domestic interests towards the Belt &amp; Road Initiative (BRI) to obtain greater commitments from existing and potential BRI nations. It is shown that after the BRI’s official establishment in 2013, China’s trade commitments from potential accession countries are becoming more pronounced, with increasing and sometimes onerous expectations of the acceding countries, due to the lack of any standard format for bilateral accession protocols. WTO law is increasingly part of BRI hard law governance practices, suggesting encroachment of BRI disputes within the WTO dispute settlement framework to establish a novel approach to dispute resolution. Since rules-based trade practices are needed, Member States should not adopt accession protocols that are either too rigid or too flexible, thereby creating glaring loopholes to be misused. WTO’s overall objective of furthering trade liberalization can be achieved only by keeping track of techniques adopted by developed countries when negotiating with developing and least developed countries such that potential members are not discouraged from joining the new economic order from the outset.
BRI, Belt and Road Initiative, WTO, accession, SCM agreement, subsidies, services, telecommunications, trade-related investment measures, LDC Guidelines
Export Controls on COVID-19 Vaccines: Has the EU Opened Pandora’s Box?
Authors: Evenett Simon J. 
Published: April 2022

On 30 January 2021 an export authorization regime for COVID-19 vaccines came into effect for shipments from the European Union. While some contend covert export curbs on COVID- 19 vaccines predated this move, the EU’s export authorization regime – which includes provision to prohibit export of vaccine – was the first overt control regime introduced on such vaccines since the beginning of the COVID-19 pandemic. To some observers this step by the European Union confirmed fears that Vaccine Nationalism would disrupt the equitable and efficient distribution of vaccines necessary. While such legitimate global public health concerns provide important context, the purpose of this article is to examine in detail the contents of the European Commission’s implementing regulation for this export authorization regime. Seven grounds are found for concern by the European Union’s trading partners. Having established such cause for concern, the article then lays out five ways in which those trading partners might react, bearing in mind that different trading partners face different circumstances and may respond in different ways. The potential for direct retaliation within the COVID-19 vaccine supply chain is explored as well as cross-retaliation for trade in essential goods and against the affiliates of European Union affiliates located abroad.
COVID-19, Coronavirus, pandemic, vaccines, vaccine nationalism, European Union, export control, public health, supply chain, retaliation
Restrictions on Trade in Telecommunications: WTO’s Cybersecurity Conundrum
Authors: Akcali Gur Berna 
Published: April 2022

This article examines the role of the World Trade Organization (WTO) in balancing the nexus among a rule-based multilateral trade system, national security, and cybersecurity. It presents a historical account of restrictions placed on the telecommunications trade over national security concerns and focuses on the significant political risks thereof for the WTO if these restrictions are challenged at its dispute settlement system. An analysis based on the WTO Panel rulings in ‘Russia – Traffic in Transit’ and ‘Saudi Arabia – Protection of IPRs’ is revealing in this context. It shows that, despite the obvious cybersecurity concerns, the invocation of the national security exception is not straightforward. The turn to power politics and regionalism highlights the significance of multilateral organizations that provide a more inclusive structure to reflect and protect the interests of all their members, not just those that hold positions of power and control. As long as the stalemate at organizations such as the United Nations (UN) and the International Telecommunication Union (ITU) continues, despite the need for a more legitimate, inclusive multilateral framework, the expectation of a ruling on trade-related aspects of cybersecurity will place an unnecessary burden on the WTO dispute settlement system.
Cybersecurity, World Trade Organization, National Security Exception, Telecommunications, Multilateralism, Regionalism, Geopolitics
United States Special 301 – A Deeply Flawed Tool for IPR Regulation?
Authors: Qureshi Asif H. 
Published: April 2022

In this article an International Law and policy perspective is applied to the US Special 301 approach to the management of intellectual property rights of foreign States – with emphasis on the pharmaceutical sector and transfer of technology against the backdrop of US China trade tensions. In particular, the article draws upon the US Special 301 Reports between 2018 to 2020. The paper sets out to take a critical stance of Special 301. This evaluation is intended to equip in particular those who are at the receiving end of the Special 301mechanism. The paper concludes that Special 301 is lacking in informed, expert and empirically based inputs. Above all it lends itself to being hijacked by the narrow agenda of the executive without adequate international, constitutional and due process safeguards for those it is targeted at.
US Special 301, Intellectual Property, WTO, Technology Transfer, Pharmaceuticals, TRIPS, China, International Law, Due Process
On Trade Liberalization for Political Ends: The Case of the EAEU
Authors: Marrella Fabrizio , Usmanov Rafik Khammatovic , Barbirotto Patricio Ignacio 
Published: April 2022

As evidenced by WTO theory and practice, even as exceptions regulated at Article XXIV GATT 1994 and Article V GATS, regional trade agreements (RTAs) or preferential trade agreements are an important legal tool to liberalize trade and strengthen economic or political cooperation. In recent years, notwithstanding the fiasco of TTIP and TPP, RTAs have proliferated in different regions of the world. Among them, the Eurasian Economic Union (EAEU) is a customs union established in 2015 which is institutionally similar to the European Union (EU) albeit unexplored in academic literature. Remarkably, during its first five years of existence as an international organization, the EAEU has become a trade entity capable of adopting common technical regulations and a uniform customs code regulating cross-border trade in the internal single market and with third parties. Moreover, the EAEU has been quite active in concluding international agreements with third States, setting the basis to make the EAEU a key player on the global arena. Is the EAEU an RTA with the purpose to liberalize trade and services, mindful of the WTO philosophy, or rather is it a mean to attract back in the Moscow’s orbit some of the Post-Soviet States thus reaching precise geopolitical ends? What is its relevance for international business?
Regional Trade Agreements, International Economic Law, Eurasian Economic Union, WTO, International Economic Organizations, Post-Soviet States, EAEU Customs Code, Russia, Common Market
Appellate Body Crisis at the World Trade Organization: View from India
Authors: Raj Vishakha , Mohan M. P. Ram 
Published: April 2022

There has been a crisis prevailing at the Appellate Body of the World Trade Organization (WTO) since December 2019. The United States’ (US) refusal to allow the appointment of members to the WTO’s Appellate Body has disturbed the functioning of the entire WTO dispute settlement process. In order to mitigate the effects of this, the European Union (EU) has proposed a multi-party interim appeal arbitration agreement (MPIA) which has been joined by over twenty other WTO members. In the absence of rules-based dispute settlement, countries will most probably resort to bilateral negotiations. This will be prejudicial to the interests of developing countries that have consistently been disadvantaged during bilateral negotiations and fared better in proceedings with third-party adjudication. Though India has expressed concerns about the Appellate Body crisis, it has not joined the MPIA and has stated that it does not intend to do so either. This article explains why India would benefit from joining the MPIA especially given the disputes it has pending before WTO Panels. Joining the MPIA will help India avoid unilateral sanctions at the first instance and increase the likelihood of compliance by other WTO members that are a part of the MPIA.
WTO, Appellate Body, India, dispute settlement, multilateralism, United States, European Union
When International Trade Law Meets Tax Policy: The Example of Digital Services Taxes
Authors: Pirlot Alice , Culot Henri 
Published: April 2022

With the rise of digital services taxes (DSTs) all over the world, questions have arisen regarding their compatibility with international trade law. Between 2019 and 2021, the United States initiated investigations into several DSTs and published observations on the DSTs adopted by Austria, France, Italy, India, Spain, Turkey and the United Kingdom. In addition to the argument that these taxes violate international tax principles, the US considers that they are discriminatory. This article uses this claim as a basis to analyse the likelihood for DSTs to be incompatible with World Trade Organization (WTO) law. First, it provides an overview of the unilateral, regional and multilateral tax proposals to mitigate the challenges of the digitalized economy. Second, it discusses the main legal issues that could arise under the law of the WTO, focusing on legal issues under the General Agreement on Trade in Services (GATS). While recognising that there may be good tax policy reasons to oppose DSTs, this article concludes that arguments based on WTO law provide, if at all, a weak justification to oppose such taxes.
Digital Service Taxes (DST), GATS, Unilateral taxes, Digitalized economy, Destinationbased taxes, National treatment, Most-favoured-nation principle, Non-discrimination of services and service providers
The Issue of Non-market Economy Status in China’s Anti-dumping Investigations Against Imports: A Development for the Implementation of New Rules or A Balancing Strategy?
Authors: Yu Yanning 
Published: April 2022

This article addresses China’s recent practices regarding the issue of non-market economy (NME) status in anti-dumping investigations against imports. The article uses the latest developments to analyse and examine two important questions. One question is whether China’s practices are justified under the World Trade Organization (WTO)’s rules and its domestic anti-dumping rules, and the other question is whether China’s new practices are merely a strategy for balancing various increasingly unresolved allegations against Chinese exporters abroad. Part 2 outlines the background of China’s recent investigations and key rulings on China’s practices regarding the issue of NME status. Part 3 then discusses the two aforementioned questions by analysing the detailed issues embedded in the rulings. Part 4 makes some concluding remarks.
China’s anti-dumping investigations, NME status, WTO ADA, PMS, NME investigations, NME rulings
International Competitiveness and Resource Rents—Insights from the Canada–U.S. Softwood Lumber Dispute
Authors: Cullen S.E. 
Published: April 2022

“Corn is not high because a rent is paid, but a rent is paid because corn is high; and it has been justly observed that no reduction would take place in the price of corn although landlords should forego the whole of their rent”.
David Ricardo, 1917
Analysis of Tying Under Article 82 EC: The European Commission's Microsoft Decision in Perspective
Authors: Graf Thomas , Dolmans Maurits 
Published: April 2022

The European Commission's investigation of Microsoft's tying of Windows Media Player has generated new interest in the application of EC law to tying abuses. In the context of this case, some commentators have suggested that EC competition law is too rigid when dealing with tying practices by dominant companies. This article discusses the conditions that the Commission and the Court of Justice have applied for findings of abuse under Article 82 EC in tying cases. An analysis of the case law of the Commission and the Court of Justice shows that a five pronged test applies to the assessment of tying abuses under EC law. To establish an infringement of Article 82 EC to following elements need to be met: (i) dominance of the seller in the market for the ``tying product''; (ii) existence of a ``tied product'' that is separate from the ``tying product''; (iii) coercion, i.e. conduct forcing customers to buy the tied product together with the tying product; (iv) a restrictive effect on competition for the ``tied product''; and (v) absence of an objective and proportionate justification for the coercion. The five-pronged test represents a well-balanced approach to identify those tying practices that warrant intervention under Article 82 EC. The different elements necessary for a finding of abuse all serve to distinguish harmful from innocuous practices. Applied properly, the five-pronged-test will lead to much more refined and economically reasonable results than any per se rule – be it per se illegality or per se legality – could hope to achieve. This approach is also consistent with the assessment of tying abuses under US law. The Commission's Microsoft decision is a good example for a thorough and comprehensive investigation of an abusive tying practice that has far reaching implications for competition and innovation.