The ECN’s Way Ahead: Making Decentralised Antitrust Enforcement Waterproof

A View on Future Roles of The WTO: Should There be More Soft Law in The WTO

It has been more than ten years since the Doha Development Agenda (DDA) was initiated and there has been little significant progress in negotiations. Is the World Trade Organization (WTO) losing its relevance in the governance of the international trade order? The writer argues that, despite this pessimistic picture, there will be roles of the WTO in building a new international trade system. Although the WTO has accomplished a tremendous success in the dispute settlement area, it has failed in conducting negotiations to create new rules and this is largely due to the change in power structure within the WTO. The Quadrilaterals (U.S., EU, Canada and Japan) (QUAD) countries which played a central role in the Uruguay Round Negotiation have declined in their powers and influences and the Brazil, Russia, India, China and South Africa (BRICS) have emerged as new trade powers. This has created a stalemate and often negotiations come to deadlock. Faced with this situation, trading nations have concluded many Free Trade Agreement (FTA), and Regional Trade Agreement (RTA), and recently there is a conspicuous trend toward negotiating Mega FTAs such as the Transpacific Partnership Agreement (TPP), Transatlantic Trade and Investment Partnership (TTIP), and the Regional Comprehensive Economic Partnership) (RCEP). Observers say that the multilateral trading system may be taken over by regionalism. However, Mega FTAs have their own limitations and problems. Their operations are restricted to certain regions and number of participants is limited. They will not be the substitute for the multilateral trading system as represented by the WTO. Mega FTAs may incline toward block economy and may create political tensions between one FTA vis-à-vis another FTA. Also production systems and supply chains today exceed far beyond the boundaries of FTAs. Different and sometime inconsistent trade rules of Mega FTAs may produce ‘spaghetti bowl’ situation. It is the sense of the writer that someone has to orchestrate activities of FTAs through which their rules can be converged and operations coordinated and this is a future role of the WTO. The WTO can play such a role through activities of Trade Policy Review Mechanism (TPRM) and the Committee of Regional Trade Agreements. The writer suggests that the WTO tries to establish a ‘FTA Network’ in which FTA officials are frequently convened and discuss trade rules and other matters with the view to convergence. Through such activities, there will be collegiality and esprit de corps among various FTA officials and this creates more harmonized and coordinated rules and activities among FTAs and a more harmonized relationship between FTAs and the WTO. This is a ‘soft law’ approach. Since its establishment, the WTO has concentrated its effort in creating trade rules (binding rules). It is time for the WTO to use a soft law approach as well as hard law approach.

The Field of International Economic Law

In a journal analyzing developments in the theory and practice of international economic law (IEcL), it is appropriate occasionally to reflect on the changing meaning of IEcL and its relation to public and general international law. After an introductory excursus of the three terms—international, economic, and law—this article examines the evolution of the field as such. First, there is a discussion of the key institutional innovations achieved in the early 20th century. Second, there is an overview of the foundational IEcL writings of Ernst Feilchenfeld, Georg Schwarzenberger, and John H. Jackson. The historical contributions of Feilchenfeld, a Georgetown University scholar, have heretofore received little attention in the IEcL literature. Next, the article discusses the burgeoning IEcL scholarship of the past few 25 years and notes the still ongoing efforts to develop a theory of IEcL to explain its purpose in regulating the global economy and achieving a world public order of human dignity.

International Economic Law in Transition from Trade Liberalization to Trade Regulation

An Appreciation and Reflection by Professor John H. Jackson

International Economic Law and Public International Law: The Past and The Future

The field of international economic law has changed dramatically from fifty years ago. There are now many lawyers around the world engaged in the field, there are courses in law schools, there is a substantial scholarly and professional literature, and international economic law has engaged the interest of public international lawyers. Moreover, there is an emerging generation of international lawyers well versed in traditional principles of public international law as well as international trade law and international investment law. Yet, for a variety of reasons there is still suspicion by some public international lawyers of the legitimacy of international economic law as a field. The challenge for the future is to foster a greater understanding between the areas of trade, investment and other fields of international law so that concepts used in one are readily understood in the other and, where relevant, adapted and applied more generally.

Trade, International Economic Law, and the Challenges of the Global Economy: A Symposium in Honor of John H. Jackson

The WTO and Rules-Based Dispute Settlement: Historical Evolution, Operational Success, and Future Challenges

The World Trade Organization (WTO) has three main functions—first, negotiations on trade matters; second, oversight of existing WTO agreements; and third, dispute settlement. The WTO’s negotiation function has broken down and its oversight function, while useful and valuable, is the least visible and least significant of the three functions. Thus, the credibility of the WTO as a functioning international organization essentially depends on ensuring the effectiveness of its dispute settlement function. This paper briefly traces the historical evolution of the dispute settlement system under the General Agreement on Tariffs and Trade (GATT) and then considers the current state of the WTO dispute settlement system—how effectively has it operated to date and what operational and procedural problems have arisen? It concludes by examining the challenges the WTO dispute settlement system will face in the coming years, considering, in particular, whether the system will be able to resolve effectively disputes between the major WTO powers—the United States, the European Union and China.

International Standards in Flux: A Balkanized ICT Standard-Setting Paradigm and its Implications for the WTO

Voluminous studies have documented the rise of international standards and their ramifications for the World Trade Organization (WTO), though most of these studies have focused on environment, food safety, public health, and financial regulations issues. An equally important, yet less explored, area is the information and communications technology (ICT) industry. This article seeks to contribute to the literature by examining the concept of an international standard in the ICT industry and its implications for the WTO.

Drawing upon empirical data, this article makes four claims. First, today, the WTO policymakers are facing a ‘balkanized’ standard-setting paradigm in the ICT sector. Global standard-setting in the ICT industry is no longer the sole domain of the ‘Big Three’: the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC), and the International Telecommunications Union (ITU). Numerous industry consortia, mostly based in the USA, have emerged on the scene and in some way compete with the Big Three. Second, this paradigm shift engenders intense legal and political interest among major trading partners in the WTO, namely the USA and the EU. Applying the current WTO jurisprudence to this new paradigm, this article suggests that certain consortia may qualify as ‘international standardizing bodies’ for the purpose of the WTO. To the extent that standards developed by these consortia are recognized by the WTO, firms operating outside the US-based standardizing environment would bear higher costs in global trade. Additionally, this article argues that, while the Big Three seeks to respond to evolving market demands, their structural changes undercut the legitimacy as an international standardizing body. Fourth, intellectual property in the ICT standard-setting context is an eminent threat to the WTO. Ambiguities in licensing rules of the standardizing bodies—be they the Big Three or the industry consortia—may provide loopholes for emerging economies moving up the global value chain to use selectively an international standard.

International Regime Complexity and Economic Law Enforcement

The article makes two contributions: first, it locates the causes of the increase in parallel, overlapping, or related proceedings in the enforcement of international trade and investment agreements in two distinct but interrelated dynamics: the inseparability or ‘convergence’ of trade and investment and ‘minilateralism’—or the expansion of regional trade agreements as an alternative to global negotiations. In contrast to some accounts, the article is not troubled by this phenomenon. Instead, it explores the intersections between international trade regulations and investment law during the process of enforcement. Specifically, it describes how the expansion of economic arrangements creates spaces to maneuver and innovate and proposes a framework of six strategies to understand the combination of different but related bodies of laws. Second, the article presents policy-makers and treaty negotiators with a palette of targeted options that can help to control these strategies. I argue that while it may be close to impossible to catalog all the consequences of converging structures, overlapping jurisdictions, and parallel lawmakers of trade and investment, states can promote coordination across tribunals and, to a limited extent, among independent but interconnected regimes by understanding the ways economic agreements interact as an international regime complex.