Law JournalFeeds » Journal of International Economic Law

The Conundrum of Shifting Orthodoxies: FTAs And Korea’s Currency Controls

admin — Fri, 06 Jan 2012 07:15:23 +0000

The financial services regime, comprising the General Agreement on Trade in Services and bilateral free trade and investment agreements, reflects the ‘orthodoxy’ of highly liberalized and lightly regulated financial markets that has supported the ascendancy of financialization. That orthodoxy has fractured as the post-2007 global financial crisis exposed systemic instability in the financialization model and the failings of the associated regulatory regime. Yet, binding and enforceable financial services and investment agreements tie governments to that regime. Although international institutions and commentators increasingly advocate alternative strategies, such as the imposition of currency controls, governments that adopt them risk legal challenges for breaching their trade obligations. This risk is illustrated by assessing South Korea’s capital controls of June 2010 against the market access, national treatment and transfers obligations, investment protections and prudential exceptions in Korea’s free trade agreements with the USA and the European Union. To date, states whose firms dominate global finance have resisted high-profile calls within and outside the World Trade Organization to revisit the financial services regime. If they maintain that position, these embryonic tensions seem likely to intensify. Placing unacceptable constraints on national governments could propel the trade in financial services regime towards a crisis of legitimacy.

Mineral Export Restraints and Sustainable Development–Are Rare Earths Testing the WTO’s Loopholes?

admin — Fri, 06 Jan 2012 07:15:23 +0000

China’s actions in limiting the export of rare earths have drawn the world’s attention. The USA, Japan, and the European Union (EU) have been frustrated with China’s measures, even threatening to bring the case to the WTO. These rare earth trade disputes are but the tip of the iceberg. Forms of export restraints on minerals have been increasingly practiced by developing countries, reflecting developing countries’ determination to upgrade their own economic condition against a broader backdrop of international economic transition in a mineral-hungry world. Such issues of mineral export restraints are deeply rooted in the traditional international trade structure, and in turn serve as a historic move to break it. The WTO’s consensus-based approach, with developing countries comprising more than two-thirds of WTO membership, has to accommodate this changing situation in both its judicial and negotiation scenarios. Accused of being trade-distorting and inconsistent with the WTO Agreement on the part of mineral export restraints, developing countries expect to defend themselves by reasons of environmental protection and conservation of exhaustible natural resources. This article anticipates that, in the next round of multilateral negotiation, the developed world will attempt to bring the issue of export restraints under multilateral mandates.

Certificates of Free Sale: Who is Being Protected from Whom?

admin — Fri, 06 Jan 2012 07:15:23 +0000

Certificates of Free Sale (CFS) are little known but widely used instruments in international trade. A CFS states that a product meets the regulatory requirements of the exporting country and can be sold freely in that country. Many developing countries require a CFS as a condition of importation in sensitive sectors, such as medical devices, pharmaceuticals, pesticides, cosmetics, and food products. This paper is the first major work to explore the legal implications of certificates of free sale. It describes various CFS requirements and examines the WTO-legality of trade restrictions imposed by importing countries based on the failure of exported goods to meet the domestic standards of the exporting country. The authors conclude that most CFS schemes are likely to violate WTO obligations. They suggest WTO-consistent ways of protecting legitimate developing country interests that eliminate the need for CFS schemes.

China’s Anti-Monopoly Law and its Merger Enforcement: Convergence and Flexibility

admin — Fri, 06 Jan 2012 07:15:23 +0000

As the world’s second largest economy and the world’s fastest growing economy, China is a late but significant entrant into the competition law club with the implementation of the Anti-Monopoly Law (AML) on 1 August 2008. This article provides a review of the enactment of the AML and a detailed discussion of the merger provisions and application of those provisions by the competition enforcement agency. Despite the short history of application of the AML, empirical findings on merger enforcement illustrate that China is making efforts to realize a soft convergence with international norms. Meanwhile, China’s gradual approach to convergence gives it the flexibility to stop, to adjust, and to make an exception whenever necessary to accommodate its transitional and growing economy.

EC – Fasteners: Opening the Pandora’s Box of Non-Market Economy Treatment

admin — Fri, 06 Jan 2012 07:15:23 +0000

On 15 July 2010, the Appellate Body of the WTO circulated its report in EC – Fasteners. In its report, the Appellate Body, for the first time, adjudicated the issue of non-market economy (NME) treatment towards imports from China and provided plausible interpretations of China’s special commitments under the Accession Protocol and certain articles of the Anti-Dumping Agreement. However, a number of NME-related questions remain unanswered owing to the scope of claims submitted by the applicants. Insofar as the enforcement of WTO rulings is concerned, legislation amendments, as required in the report, are imperative during the implementation process of the European Union. Furthermore, there is also the chance that the European Court will award duty repayment to importers that have been subject to NME country-wide duties.

Fashioning a New Regime for Agricultural Trade: New Issues and the Global Food Crisis

admin — Fri, 30 Sep 2011 06:45:08 +0000

This article examines the impact of issues such as the global food crisis, export controls on agricultural products, and food security on the agricultural trade negotiations currently underway in connection with the Doha Development Agenda convened by the World Trade Organization (WTO) in 2001. These important issues, which were not foreseen when the negotiations began, must now be squarely faced. Many international organizations, such as the United Nations, the International Monetary Fund, the World Bank, and most recently the G-20, are examining in particular the problem of food security. While food security and the global food crisis require solutions and actions that are broader than international trade, trade reform in agricultural products is an essential part of their solution. This article concludes that these new issues do not change the basic international agreement that needs to be reached to reform the WTO Agreement on Agriculture. WTO members still should pursue agreement on market access, reducing and simplifying domestic support, and eliminating export subsidies. However, to deal with food security issues, WTO members should take up the export side of agricultural trade and prohibit export controls altogether, or at least enact strict criteria before export controls may be instituted by WTO members.

A Glimpse at the Democratic Legitimacy of Private Standards: Assessing the Public Accountability of GlobalG.A.P.

admin — Fri, 30 Sep 2011 06:45:08 +0000

This article seeks to shed light on a notion that is often considered essential in conferring global regulatory authority, but is rarely defined in contemporary scholarship on global governance: the notion of legitimacy. The authors centre their analysis on the value of democracy as one of the seminal determinants of the legitimacy of regulatory actors and the norms they adopt. They further focus on the democratic legitimacy of norms adopted by global private actors. A specific breed of such ‘private standards’ is studied, namely those addressing food safety. More in particular, the leading standard scheme for good agricultural practices—GLOBALG.A.P.—is taken as a case study. The authors view democratic legitimacy in global governance as a function of the ‘public accountability’ of the relevant regulatory actors, which comprises a prospective and a retrospective dimension. Public accountability is analyzed as this link which unites, in a democratic fashion, a regulatory actor and its public, i.e. the ensemble of the people who are affected by its regulatory activities. GLOBALG.A.P.’s standard-setting is assessed in light of this analytical framework. The authors find that, while the accountability of GLOBALG.A.P. as a regulatory actor in the field of food safety is satisfactory in respect of its internal members, additional efforts need to be made to ensure stronger (democratic) accountability vis-à-vis its other—external—stakeholders, particularly those located in developing countries.

The Role of Rules of Origin to Provide Discipline to the Gatt Article XXIV Exception

admin — Fri, 30 Sep 2011 06:45:08 +0000

This article examines how the GATT Article XXIV regional trade agreement (RTA) exception can be strengthened to curb the proliferation of RTAs that maintain questionable levels of trade liberalization. The lack of rigorous application of the ‘substantially all the trade’ requirement and the use of rules of origin in a restrictive manner are persistent problems that have led to the exclusion of products that should otherwise be part of trade liberalization under RTAs. To provide the discipline currently lacking in Article XXIV, the internal trade under an RTA should be based upon ‘non-preferential rules of origin’ (NPROO) so that trade barriers between RTA parties with respect to ‘substantially all the trade’ will be eliminated. Furthermore, restrictive preferential rules of origin should be eliminated by replacing them with harmonized NPROO. NPROO therefore not only help define the proper scope of trade coverage for RTAs, but they also provide the proper standard to ensure that RTA rules of origin do not become impermissibly restrictive.

State Liability in Investment Treaty Arbitration – Global Constitutional and Administrative Law in the BIT Generation. By Santiago Montt

admin — Fri, 30 Sep 2011 06:45:08 +0000

Dispute Settlement at the WTO: The Developing Country Experience. Edited by Gregory C. Shaffer and Ricardo Melendez-Ortiz

admin — Fri, 30 Sep 2011 06:45:08 +0000

The Rise of National Regulatory Autonomy in the GATT/WTO Regime

admin — Fri, 30 Sep 2011 06:45:08 +0000

This article sets forth two arguments. First, to respect a WTO Member’s national regulatory autonomy in the world trading system is essential to ensure the WTO’s long term success in light of the WTO’s institutional constraints, the WTO’s underlying philosophy and the WTO’s nature as an incomplete contract. Second, and contrary to many popular criticisms against the WTO’s allegedly intrusive penetration to national regulatory autonomy, this article argues that these critics have failed to appreciate the recent WTO case law developments. Indeed, the recent WTO case law has shown that the WTO Appellate Body has quietly fine-tuned its previous jurisprudence and as a result, WTO Members enjoy a broader scope of regulatory autonomy than conventionally assumed.

Fair in Form, But Discriminatory in Operation–WTO Law’s Discriminatory Effects on Human Rights in Developing Countries

admin — Fri, 30 Sep 2011 06:45:08 +0000

There are many points of intersection between the law of the World Trade Organization and international human rights law. This article looks at one such, where WTO law requires developing countries to introduce measures that may have disproportionately adverse impacts on the human rights of individuals or groups who are protected under human rights law from discrimination. Indirect discrimination of this kind usually occurs because prior discriminatory treatment has created social and economic inequalities that subsequent, apparently neutral—or ‘fair in form’—measures exacerbate. Country studies of Nicaragua and Ghana provide evidence that indirectly discriminatory impacts might occur as a result of the reductions in agricultural tariffs proposed in the Doha Round for developing countries. While laws which have discriminatory effects may be justifiable, discrimination on the basis of race or sex is anathema to human rights law and will be subjected to intense justificational scrutiny. The article scrutinizes the justifiability of the proposed agricultural tariff reductions, concluding that less damaging alternatives are available and could be adopted at the multilateral level. It is argued that the potential discrimination is best dealt with at this level, since it is the law-making level and the discrimination is unlikely to be corrected through domestic, remedial action within developing countries.

Time to Quit? Assessing International Investment Claims against Plain Tobacco Packaging in Australia

admin — Fri, 30 Sep 2011 06:45:08 +0000

The Australian federal government recently introduced into Parliament legislation mandating the plain packaging of all tobacco products. Tobacco companies and others have raised various legal concerns with this tobacco control scheme, both at a domestic level in relation to constitutional and intellectual property law, and at an international level in relation to international economic law. Some Members of the World Trade Organization (WTO) have asked questions about the scheme in the WTO’s Committee on Technical Barriers to Trade and Council for Trade-Related Intellectual Property Rights. In addition, Philip Morris (Asia) Limited has given notice of an investor-State dispute settlement claim against Australia regarding plain packaging pursuant to the Hong Kong–Australia Bilateral Investment Treaty. This article considers the merits of that claim as well as certain related procedural issues. It also compares Australia’s investment obligations with respect to plain packaging under the Australia–United States Free Trade Agreement, as some allegations have been made that plain packaging may be inconsistent with those obligations.

Protecting Public Morals in a Digital Age: Revisiting the WTO Rulings on US – Gambling and China – Publications and Audiovisual Products

admin — Mon, 11 Jul 2011 12:58:18 +0000

Values such as promoting free trade in services or protecting public morality coexist in a perilous balance nowadays. This peril appears to be exacerbated by the manifold possibilities of supplying services that the digital age brings with it. Technological advances and innovations transform the manner that services are supplied and call for swift reaction by regulatory authorities. Furthermore, electronic communications erode long-standing traditions in regulating various services industries (supply side) and consumer behaviour (consumption side) and sometimes allow for easy circumvention of law. The US – Gambling and China – Audiovisual Products rulings are the first pronouncements of the World Trade Organization (WTO) judiciary on the possible clash between trade expansion, on the one hand, and protection of public morals, on the other. After a critical review of these two important recent rulings on the concept of public morality and its treatment by the WTO judiciary, the article goes on to discuss the changing scope of regulatory sovereignty regarding the protection of public morality in a digital landscape; the paradigm shift in regulatory approaches that technological advances bring about; and the role of courts and non-state actors in the regulation of cyberspace.

Of Facts and Phantoms: Economics, Epistemic Legitimacy, and WTO Dispute Settlement

admin — Mon, 11 Jul 2011 12:58:18 +0000

World Trade Organization panels are regularly required to address specifically economic evidence and arguments when resolving disputes. Economic arguments provide the basic foundations for many disputes, and parties are proving increasingly willing to contest the facts underlying those arguments. Despite this, panels have often failed to engage satisfactorily with economic reasoning. The deficiencies in panels’ reasoning have been exacerbated by their refusal to seek information and advice from independent economic experts. This approach is neither necessary nor productive. It undermines the epistemic legitimacy of individual panel reports and the political legitimacy of the dispute settlement system more generally. More careful and rigorous panel engagement with economic evidence, as assisted by independent experts acting within appropriate limits, would go some way to reducing this legitimacy deficit while improving the accuracy and finality of the dispute settlement system.

Peddling Protectionism: Smoot-Hawley and the Great Depression. By DOUGLAS A. IRWIN

admin — Mon, 11 Jul 2011 12:58:18 +0000

Countervailing Duty against China: Opening a Pandora’s Box in the WTO System?

admin — Mon, 11 Jul 2011 12:58:18 +0000

In this article, we trace the jurisprudential history of the applicability of US countervailing duty (CVD) law to non-market economies (NMEs). We describe how, since the USA reversed its long-standing policy of not imposing CVDs on NMEs, concurrent application of antidumping (AD) duties and CVDs has become the country’s major trade remedy action against China. Although the WTO panel rejected China’s claim of WTO-inconsistency regarding the current US practices, the US Court of International Trade firmly ruled that the Department of Commerce’s double counting of AD duties and CVDs against China violates domestic regulation. Finally, the WTO Appellate Body ruled that this ‘double remedy’ violates the rule to levy CVDs ‘in the appropriate amounts’ under Article 19.3 of the Agreement on Subsidies and Countervailing Measures. We will argue that, although the Appellate Body’s ruling is praiseworthy in preventing an illogical practice, its legal reasoning may give rise to some doubts and controversy when the negotiating history of Article 19 is examined. We will also analyze key features of current double remedy practices in the USA and Canada.

Preventing Opportunistic Uncompliance by WTO Members

admin — Mon, 11 Jul 2011 12:58:18 +0000

The World Trade Organization’s (WTO) Dispute Settlement Understanding is silent on the consequences for members if they comply with trade obligations, but later uncomply, resulting in similar violations as those giving rise to the original dispute. This article shows that WTO members can uncomply without facing economic consequences because the arbitrators that authorize the suspension of WTO concessions have a limited jurisdiction relative to compliance panels and because the DSU does not provide sanctions for past (in contrast to ongoing) violations. Members may thus delay compliance until immediately before panels assess their compliance record and then may uncomply because arbitrators cannot authorize the suspension of concessions for the measure to uncomply. Cases of uncompliance allow members to commit repeated violations with impunity. This contrasts with cases of non-compliance, where trade disputes eventually result in implementation of recommendations, compensation to the aggrieved member, or the suspension of concessions against the violating member. We identify the ongoing US – Upland Cotton dispute as a potential case of uncompliance. WTO members have an opportunity to protect themselves from delayed compliance and uncompliance by seeking authorization to suspend concessions where the violating member has not taken measures within the timeframe given to comply. We show that because Brazil forfeited its rights to do so in the US – Upland Cotton dispute through a sequencing agreement, the United States may have uncomplied without facing a countermeasure for certain cotton subsidies.

A Framework for Thinking about the ‘Discretion’ in the Mandatory/Discretionary Distinction

admin — Mon, 11 Jul 2011 12:58:18 +0000

The mandatory/discretionary distinction that has been applied to ‘as such’ challenges in WTO disputes is the subject of a good deal of disagreement, both as to its scope and its continued applicability. In this piece, I put forward a framework for thinking about the kinds of discretion that may exist in a measure, focusing on two general categories of discretion and presenting a way to evaluate the ‘degrees’ of discretion based on these categories. This framework can be applied regardless of which view is taken on the proper role of the distinction. In addition, I offer some thoughts on the basis for the distinction between mandatory and discretionary measures and, taking into account the framework developed, on how the distinction should be applied.

New JIEL Editorial Board Members

admin — Mon, 11 Jul 2011 12:58:18 +0000

The Limits of WTO Adjudication: Is Compliance the Problem?

admin — Mon, 11 Jul 2011 12:58:18 +0000

Mainstream international trade law scholars have commented positively on the work of World Trade Organization (WTO) adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO adjudication involving primary rights and obligations under the WTO agreements (i.e. substantive adjudication), this article expands the empirical study into compliance disputes. It finds that ‘enforcement’ proceedings do protect the pro-free trade interests so overwhelmingly supported in substantive adjudication. Since that is the case, this article investigates the extent to which current levels of non-compliance might constitute a threat to this regime, and theorizes that the observed level is not only acceptable but a necessary feature of the system. I conclude by arguing that compliance-related issues must be viewed in a broader perspective that transcends narrow legalistic views and accounts for the multifaceted interests of, and differences among, WTO members.

Corrigendum

admin — Mon, 11 Jul 2011 12:58:18 +0000

Antinomies of Public and Private at the Foundations of International Investment Law and Arbitration

admin — Mon, 11 Jul 2011 12:58:18 +0000

International investment law has in recent years become a topic of great practical and academic importance, as the thousands of international investment treaties have given rise to hundreds of investor-state arbitrations, and innumerable books and articles. But fundamental questions concerning the regulatory character of international investment law, and what its aims and objectives are, remain the subject of contestation reflected in a variety of policy debates and in competing historical narratives regarding the development of the field.

This article contends that two ‘public–private’ distinctions or antinomies lie behind this indeterminacy, at international investment law’s uncertain foundations—the first dealing with the characterization of international investment law as a form of ‘public’ or ‘private’ law, and the second dealing with the balance that international investment law strikes between ‘public’ and ‘private’ interests or objectives. A number of disputed issues in international investment law and arbitration, which are presented at the surface as merely technical problems, may in reality, it is argued, be products of these deeper underlying theoretical uncertainties.

MFN-based Jurisdiction in Investor-State Arbitration: Is There Any Hope for a Consistent Approach?

admin — Thu, 24 Mar 2011 13:17:25 +0000

Most-favored nation (MFN) clauses are a hotly contested basis for jurisdiction in investment arbitration. This article categorizes the divergent approaches taken by 17 arbitral tribunals to date, revealing the major types of MFN clauses interpreted, the key types of MFN questions confronted and the primary reasons cited for either upholding or denying MFN-based jurisdiction. It analyzes trends emerging from the awards and attempts to explain the inconsistent outcomes in terms of the different burdens of persuasion applied by tribunals. The article concludes by exploring the feasibility of finding a more consistent approach, one which respects both the dictates of the Vienna Convention on the Law of Treaties and the pragmatic concerns of investors and host states.

WTO Dispute Settlement 1995-2010–A Statistical Analysis

admin — Thu, 24 Mar 2011 13:17:25 +0000

Author Index to Volumes 1-13 (1998-2010)

admin — Thu, 24 Mar 2011 13:17:25 +0000

Subject Index to Volumes 1-13 (1998-2010)

admin — Thu, 24 Mar 2011 13:17:25 +0000

Editorial Structure

admin — Thu, 24 Mar 2011 13:17:25 +0000

Book Survey 2010

admin — Thu, 24 Mar 2011 13:17:25 +0000

Website Survey 2010

admin — Thu, 24 Mar 2011 13:17:25 +0000

Two Single Undertakings–Can the WTO Implement the Results of a Round?

admin — Thu, 24 Mar 2011 13:17:24 +0000

The World Trade Organization (WTO) Agreement was accepted as a single undertaking and the Doha Round is also treated as a single undertaking. That does not imply that any eventual results of the current negotiations can be seamlessly integrated into the existing WTO agreements all at the same time and for all Members at the same time. The procedures used to implement the results of the Uruguay Round will not necessarily be available within the constraints of the WTO’s institutional structure. Conversely, the procedures that are available within the WTO framework were not designed for the purpose of implementing the results of a comprehensive round of trade negotiations and preserving an overall balance of concessions embodied in multiple legal forms. This means that implementation will alter the multilateral nature of the WTO as it presently stands. WTO Members may yet be at liberty to revert to earlier approaches to implementation which are better adapted to the logic underlying the single undertaking approach. This paper reviews the potential form of the results of the Round as it emerges from draft modalities and texts, analyses the challenges ahead and suggests possible ways forward.

The China-Taiwan ECFA, Geopolitical Dimensions and WTO Law

admin — Thu, 24 Mar 2011 13:17:24 +0000

This article examines legal and geopolitical aspects of the China-Taiwan Economic Cooperation Framework Agreement (ECFA). It begins by analyzing areas in which the two governments’ measures contravene rules of the World Trade Organization (WTO). In particular, it provides the first detailed examination of the significant implications emerging from the ECFA for cross-straits trade relations and East Asian regionalism. The article also explains how the ECFA was modeled on free trade agreements (FTAs) of the Association of Southeast Asian Nations and assesses the impact of the ECFA’s early harvest program. Finally, the article discusses the ECFA’s consistency with WTO requirements for an interim FTA agreement and potential legal issues arising from the dispute settlement mechanism. In this respect, the article presents a valuable case study of an FTA.

Introduction to Volume 14, 2011

admin — Thu, 24 Mar 2011 13:17:24 +0000

International Economic Law, ‘Public Reason’, and Multilevel Governance of Interdependent Public Goods

admin — Thu, 24 Mar 2011 13:17:24 +0000

Is ineffective protection of international public goods, and thereby also of interrelated national public goods, the inevitable fate of humanity? The negative answer to this question in Section II argues that ineffective protection of public goods is mainly due to a lack of adequate theories, rules, and institutions for overcoming the collective action problems in multilevel governance of interdependent public goods. Section III reviews the competing conceptions of ‘international economic law’ (IEL) such as public international law approaches, multilevel economic law approaches, ‘global administrative law’ (GAL) approaches, ‘conflicts law approaches’, and ‘multilevel constitutional approaches’. Section IV argues that—similar to the experience that ‘national public goods’ can be supplied democratically only in a framework of constitutional, legislative, administrative, and judicial rules and procedures supported by domestic citizens—multilevel governance of ‘international public goods’ requires a multilevel constitutional framework for multilevel rule-making and judicial protection of rule of law and constitutional rights supported by domestic citizens as ‘primary’ legal subjects of IEL. Section V concludes that multilevel governance of interdependent public goods must no longer be designed only as ‘foreign policy’, but also as part of ‘multilevel constitutionalism’ necessary for protecting common, reasonable self-interests of all citizens and states.

What is International Economic Law?

admin — Thu, 24 Mar 2011 13:17:24 +0000

Binding Tariff Preferences for Developing Countries Under Article II Gatt

admin — Tue, 21 Dec 2010 08:13:00 +0000

Tariff preferences, which are authorized under the WTO Enabling Clause and autonomous waivers, are often withdrawn on dubious grounds and without due process. This reduces much of their potential value, because traders and investors lack the predictability and security necessary to make long-term business decisions based on the market access opportunities that these preferences provide. Some developing countries have responded to this by concluding regional trade agreements (RTAs) under Article XXIV of the GATT, despite the sometimes heavy price of reciprocity. In this article, we offer an alternative. We make two practical proposals to provide the maximum possible security and predictability for both preference beneficiaries and donors. First, we argue that, contrary to what is often assumed, it is perfectly possible to bind tariff preferences under existing WTO rules. Second, based upon an examination of the current state of the law, we propose that any withdrawals of products and countries from tariff preference programs, whether by way of temporary safeguards or definitive ‘graduation’, should be based on objective and legally secure criteria. These criteria should also be scheduled as qualifications to bound preferences under Article II of the GATT. These reforms are possible without any change to existing WTO rules.

Less than the Gats: ‘Negative Preferences’ in Regional Services Agreements

admin — Tue, 21 Dec 2010 08:13:00 +0000

Regional trade agreements in services are a relatively recent, but rapidly expanding phenomenon. Their relationship with commitments undertaken under the General Agreement on Trade in Services (GATS) or offered in the Doha Round has attracted some attention in the literature. Relevant publications tend to focus on the ‘value added’ that such agreements might generate through broader sectoral coverage or deeper levels of liberalization. This article takes a different perspective, however, and focuses on provisions that fall short of the same countries’ GATS commitments. Such ‘negative preferences’ are more than an isolated occurrence: they can be found in most recent agreements, including agreements involving some of the largest World Trade Organization (WTO) Members. The existence of ‘negative preferences’ or ‘GATS-minus commitments’ may prove relevant for several reasons: in particular, they could impinge on an agreement’s legal status under the GATS and help create a trading system beyond the WTO. It is conceivable that such minus-commitments are mutually conceded in ‘sensitive’ sectors or tacitly accepted in view of ‘side-payments’ in non-WTO currency (including development finance). Those who subscribe to Bhagwati’s comparison of PTAs with termites might thus have additional reason to be alarmed: the bugs’ unconventional table manners.

China’s Development of International Economic Law and WTO Legal Capacity Building

admin — Tue, 21 Dec 2010 08:13:00 +0000

This article examines legal and institutional aspects of the evolution of China’s approach to the dispute settlement mechanism of the World Trade Organization (WTO). It begins by analyzing the impact of China’s changing attitude toward international law on the escalation of international economic law research. In particular, the article provides the first detailed examination of China’s efforts to strengthen public–private cooperation in building its WTO legal capacity. China established think tanks to bridge the information and communication gaps between the government and industries. To develop its WTO lawyers, the Chinese government has consistently required international law firms to collaborate with domestic firms in major disputes and engaged the latter in third-party cases. Finally, the article evaluates China’s assertive legalism strategy that enhances its recent participation in WTO rule-making and disputes against the US and the European Union. This research, therefore, provides a valuable case study for other emerging economies and the multilateral trading system.

Autonomy in Setting Appropriate Level of Protection under the WTO Law: Rhetoric or Reality?

admin — Tue, 21 Dec 2010 08:13:00 +0000

In the World Trade Organization (WTO) jurisprudence, the Appellate Body (AB) has repeatedly affirmed that WTO Members have the prerogative right in setting any level of protection that they deem appropriate (ALOP). At the same time, WTO Agreements provide for disciplines that a WTO Member must respect when it selects regulatory measures to fulfill its ALOP. Thus, a WTO Member’s autonomy in setting its ALOP, on the one hand, and the full force of other disciplines, on the other hand, are in a constant state of tension. Then, exactly how does a panel balance a Member’s right of setting its ALOP with a myriad of other trade obligations? To what extent is this right respected in the WTO dispute settlement processes? This article argues that the case law has confirmed that a Member’s obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) must be read in light of the Member’s chosen ALOP, and that the AB has also demonstrated sensitivity and deference to a Member’s ALOP under the SPS Agreement. The same conclusion, however, cannot be easily applied to Article XX of the General Agreement on Tariffs and Trade 1994 (GATT 1994). Indeed, the case law under Article XX has demonstrated inconsistencies as to when WTO Members’ right to set their ALOP will be respected. I argue that such inconsistencies may be explained by a value-based, pragmatic approach adopted by the AB.

The Quest for Policy Space in a New Generation of International Investment Agreements

admin — Tue, 21 Dec 2010 08:13:00 +0000

One of the most important challenges facing the international investment law regime today is how to strike a balance between principles regarding the protection and promotion of foreign investment on the one hand and principles regarding the protection of society and the environment on the other. A number of states have made significant progress towards meeting that challenge by adding interpretive provisions, general exceptions clauses and new preambular language to a new-generation of international investment agreements (IIAs). If the serious substantive and procedural questions they raise can be answered satisfactorily, these new treaties may go a long way towards saving the international investment law from the legitimacy crisis it is currently experiencing.

The Definition of Subsidy and State Aid. By LUCA RUBINI

admin — Tue, 21 Dec 2010 08:13:00 +0000

International Regulatory Reform and Financial Taxes

admin — Fri, 03 Dec 2010 09:47:05 +0000

This article examines the effectiveness and feasibility of some of the main proposals for financial taxes by analysing their economic rationale and impact and some related international trade law issues regarding their implementation. The advantages and disadvantages are considered in terms of their effect on risk mitigation, market liquidity and the provision of sustainable revenue. The article suggests that financial transaction taxes, especially those applied to currency transactions and exchange-traded and over-the-counter derivatives, could serve regulatory objectives while raising adequate revenue to assist governments in paying for the social costs of financial crises and providing global public goods.

What Role for Non-Discrimination and Prudential Standards in International Financial Law?

admin — Fri, 03 Dec 2010 09:47:05 +0000

While principles of non-discrimination amount to key constitutional principles in trade regulation, most-favoured nation (MFN) and national treatment are virtually absent in financial regulation except for the General Agreement on Trade in Services (GATS). The current GATS financial services framework aims at disciplining regulation and contains few, if any, incentives for the development of sound regulatory standards and institutions. Future amendments should create a framework allowing for the negotiation needed for adopting, incorporating, or referring to appropriate prudential standards and other common regulations for the financial industry within the GATS. Incentives should be created to develop and implement such standards as a matter of binding and enforceable obligations. The principles of MFN and national treatment will play an important role in providing level playing fields. Recourse to graduation allows different levels of economic and social development of World Trade Organization Members to be taken into account in shaping common financial regulations.

Global Securities Regulation after the Financial Crisis

admin — Fri, 03 Dec 2010 09:47:05 +0000

The global financial crisis requires a coordinated international response, but political obstacles stand in the way of a comprehensive solution. This article suggests that international cooperation in securities regulation is most feasible—though still politically difficult—if the subject of securities regulation is divided into pieces, and global regulators concentrate solely on the portion that involves interaction among sophisticated institutional investors. Even though the crisis originated in this sector, it is the domain in which there is the most global commonality of interests. By contrast, regulation of the retail segments of investment is plagued by particularly deep differences in history and institutional context, making it wise to move this subject of regulation off the near-term reform agenda. The article suggests a number of directions such convergence might take, including creating a dispute resolution system accessible to the transnational institutional investor community.

Financial Services Trade after the Crisis: Policy and Legal Conjectures

admin — Fri, 03 Dec 2010 09:47:05 +0000

The financial crisis of 2008–09 has cast doubt on the utility and effectiveness of the General Agreement on Trade in Services and of services trade law more broadly in providing instruments that are able to deal adequately with the trade-related regulatory fallout from the financial crisis and the potentially distortive measures taken to mitigate its effects. In many ways, the financial crisis has confirmed the impression of the minimal relevance of the current multilateral legal framework regulating trade in services for the prevention and management of financial crises. The crisis and the regulatory reforms that are enacted in its wake offer a propitious opportunity for revisiting the substance of services trade regulation. This should be done with a view to strengthening services trade law to better manage the downside risks of financial protectionism and offer a more credible platform for confronting the trade and investment disputes whose numbers this article considers likely to rise in the coming years.

Addressing Government Failure Through International Financial Law

admin — Fri, 03 Dec 2010 09:47:05 +0000

This study examines the causes of the financial crisis and proposes better policies at the international level. Based on a framework that sees government failure as a significant source of the problem, the study examines the new US Dodd–Frank legislation and critiques the Congressional approach to avoiding systemic risk. The study also presents a survey of the organizational efforts aimed at international financial reform and coordination, and critiques the lack of openness and public dialogue at the recent G-20 Summit in Toronto. Finally, the study proposes importing some techniques used in the World Trade Organization (WTO) and the International Labour Organization (ILO) to monitor national policies.

Reducing Systemic Risk Through the Reform of Capital Regulation

admin — Fri, 03 Dec 2010 09:47:05 +0000

Capital requirements are a key element in containing systemic risk. This article argues that the market needs to play a more significant role in determining these requirements. The Basel process has a bad track record and there are inherent methodological and political difficulties in a group of regulators, particularly an international one, determining the appropriate amount of capital for a given risk. An added role for the market depends, however, on fuller disclosure by banks of their risks and minimization of the moral hazard created by bailouts, so creditors and counterparties bear a fuller measure of the risk.

The Role of Transparency in Financial Regulation

admin — Fri, 03 Dec 2010 09:47:05 +0000

Transparency is a prerequisite for good governance and sound financial regulation. The article expounds the different foundations and functions of transparency. The first dimension refers to institutional aspects, i.e. procedures and decision-making. By providing legal certainty, transparency serves as an anchor for financial regulation. It is the basis for establishing trust, which is the key element of any financial system. In its second dimension, transparency is understood as the substantive backbone of financial regulation. It lays open the values and goals of financial policy and regulation. The third dimension is accountability of actors as an essential element for rebuilding confidence in the financial system. Finally, the concept of transparency as suggested here cannot be isolated from international developments. The article proposes that turning to the principles applied under the General Agreement on Trade in Services for defining a set of applicable international standards for financial services may be an avenue to be pursued and explored in the future.

Financial Stability and Monetary Policy: Need for International Surveillance

admin — Fri, 03 Dec 2010 09:47:05 +0000

In this article, we propose a new monetary framework that defines a broader set of assets, De Facto Money (DFM), as the benchmark for improving financial stability. DFM is defined as traditional monetary aggregates plus other liquid assets such as stocks and bonds. Empirical evidence for the USA, other Organisation for Economic Co-operation and Development countries, and a few emerging countries lends strong support for the connection between exceptionally fast growth of DFM and subsequent financial instability. We recommend several potential policy instruments to implement the new monetary framework. Due to cross-country spillovers from national financial crises, we suggest that international surveillance will be necessary to monitor DFM and thus the underlying conditions for financial stability in major countries. We argue that the International Monetary Fund is the ideal institution to carry out this task in terms of its reputation and expertise.

The Role of International Law in Monetary Affairs

admin — Fri, 03 Dec 2010 09:47:05 +0000

Monetary affairs have been a stronghold of national sovereignty, and international law is poorly developed in this field, which has been characterized by informal coordination. This article explores the theoretical underpinnings of monetary competition and the potential role of international law in framing such competition beyond institutional arrangements. We argue that, so far, the most important contribution of international law to financial stability has been made by an open and rule-based trading system of the World Trade Organization and the legal protection of investment. As to monetary cooperation, different models are discussed, ranging from harmonization and formal cooperation to predominantly informal, asymmetrical arrangements. While affirming the need for monopoly powers in the field, we argue that international monetary competition is the main tool in preventing and remedying the risks of abuse of monopoly powers inherent to national currencies. It should be framed accordingly within a system of multilayered governance. The article asks what can be learned from principles of competition and trade policies. It argues that principles of non-discrimination, in particular, national treatment and conditional most-favored nation, offer an important starting point in achieving a rule-based regulatory framework for stable monetary competition.

Enhancing the IMF’s Regulatory Authority

admin — Fri, 03 Dec 2010 09:47:05 +0000

In the wake of the financial crisis, the International Monetary Fund (the Fund) is considering changes to its regulatory authority that are designed to make it a more effective crisis-prevention body. Among the changes being contemplated is the integration of in-depth analysis of financial sector regulatory weaknesses into its annual assessment of each member’s overall economic policies. In addition, given the important linkages among the economies of its members, consideration is being given to measures that will enhance the Fund’s capacity to identify and address risks on a multilateral basis. Finally, in light of the important role of international capital movements, the Fund will be discussing options that are designed to give it a more robust role in this area.

The Role of Competition and State Aid Policy in Financial and Monetary Law

admin — Fri, 03 Dec 2010 09:47:05 +0000

During the financial crisis, companies and lenders found themselves in distressed situations. Competition authorities across the globe had to deal with controversial issues such as the application of the ‘failing firm’ defence in merger transactions as well as assessment of emergency aid granted by states. This article considers competition policy in periods of crisis, in particular the failing firm defence in merger control and its state aid policy.

WTO Subsidies Discipline During and after the Crisis

admin — Fri, 03 Dec 2010 09:47:05 +0000

This article reviews the successes of the World Trade Organization (WTO) Agreement on Subsidies and Countervailing Measures (the strengthened discipline on export subsidies), and the failures (the lack of discipline on domestic subsidies) from the birth of the WTO in 1995 to the onset of the financial crisis in 2007–09. During the crisis, governments poured money into economically necessary or politically deserving industries. The prohibition on export subsidies held up fairly well during the crisis, but the prohibition on import-substitution subsidies was likely flouted by understandings that bail-outs of industrial companies would lead to use of local supply chains. Trillions of dollars were poured into service sectors, notably financial services and real estate, and there are no WTO rules for services subsidies, notwithstanding commitments to negotiate them in the General Agreement on Trade in Services. Most likely, if there had been any rules disciplining subsidies in the financial services sectors, they would have been ignored, as the disciplines on domestic subsidies for goods were often ignored during the crisis, and before it. The crisis threw into clearer relief the question of why governments agreed to rules in 1994 which they found too uncomfortable to obey, or to enforce against other governments. The Agreement on Subsidies and Countervailing Measures sets up rules which are not strict enough to eliminate the use of countervailing duties as protectionism, and disciplines on subsidies that are too loose to prevent politicians from over-subsidizing. The authors conclude with some thoughts on the future of subsidies disciplines within the WTO.

Towards a New Architecture for Financial Stability: Seven Principles

admin — Fri, 03 Dec 2010 09:47:04 +0000

This article uses insights from organizational economics and financial regulation to study the optimal architecture of supervision. It suggests that the new architecture should revolve around the following principles: (i) banking, securities and insurance supervision should be further integrated; (ii) the macro-prudential supervisory function must be in the hands of the central bank; (iii) the relation between macro- and micro-supervisors must be articulated through a management by exception system involving direct authority of the macro-supervisor over enforcement and allocation of tasks; (iv) given the difficulty of measuring output on supervisory tasks, the systemic risk supervisor must necessarily be more accountable and less independent than central banks are on their monetary task; (v) the supervisory agency cannot rely on high-powered incentives to motivate supervisors, and must rely on culture instead; (vi) the supervisor must limit its reliance on self regulation; and (vii) the international system should substitute the current loose, networked structure with a more centralized and hierarchical one.

The Quest for International Law in Financial Regulation and Monetaryaffairs: Introduction

admin — Fri, 03 Dec 2010 09:47:04 +0000

Systemic Regulation of Global Trade and Finance: A Tale of Two Systems

admin — Fri, 03 Dec 2010 09:47:04 +0000

The recent financial crisis has put enormous strains on the global systems governing international finance and trade. These two important international regulatory systems, created after World War II to promote growth and stability in the global economy, were put to the test in ways unprecedented since the 1930s. This article seeks to analyze and compare their performance as systemic regulators in the course of the crisis and concludes that the trading system performed quite well while the financial system virtually collapsed. This article seeks to account for this difference by looking at the nature of the rules and the institutions governing each and how they evolved so differently over the past 70 years. Central to the success of the World Trade Organization (WTO) is a regulatory approach that includes rules designed, and tested in practice, to align incentives with the public good and prevent regulatory capture and a self-enforcing dispute settlement mechanism that ensures accountability and enforceability. The article concludes that these differences hold important lessons for the reform of the rules and institutions governing finance and trade in the global economy, and the role the WTO should play in this reform.

The Crisis of 2007-09: Nature, Causes, and Reactions

admin — Fri, 03 Dec 2010 09:47:04 +0000

This article analyses the nature and causes of the financial crisis of 2007–09 as well as the regulatory responses. There are two types of crises: banking crises, which affect the money stock and thus threaten the economy, and financial crises, which may destroy wealth but do not endanger the economy as a whole. Banking crises can be precipitated by a shortage of capital or by a shortage of liquidity. The 2007–09 crisis was a banking crisis, caused by a capital shortage. Numerous explanations have been given for this crisis. In this article these explanations are organized into ten groups. The main factors were easy money, excessive leverage, risk-management failures, bad lending, too-big-to-fail (TBTF) policies, inadequate supervision, and ill-thought-out regulation. The flurry of responses to the crisis is then summarized. Some are welcome, but the article concludes that unless the fear of failure returns to banking, so that management, shareholders, bondholders, and all creditors (except small depositors) suffer in a failure, then all other reforms will ultimately be pointless.

Border Problems

admin — Fri, 03 Dec 2010 09:47:04 +0000

There are several generic problems connected with financial regulation. Among them, two perennial problems are associated with the existence of important, but porous, borders, or boundaries. The first such boundary is that between regulated and non-regulated (or less regulated) entities. The second, key, border is that between states, where the legal and regulatory systems differ from state to state. In this article, we explore these two boundaries.

The Quest for International Law in Financial Regulation and Monetaryaffairs: Introductory Note

admin — Fri, 03 Dec 2010 09:47:04 +0000

The International Law of Financial Crisis: Spillovers, Subsidiarity, Fragmentation and Cooperation

admin — Fri, 03 Dec 2010 09:47:04 +0000

This article develops an analytical template for examining possible mechanisms for the avoidance and management of international financial crisis, focusing on certain areas of prudential financial regulation. This template examines questions of national regulatory policy reform, reasons for international cooperation and problems of cross-functional fragmentation. There is no evidence yet of beneficial regulatory competition in the case of this crisis. Shareholders and creditors do not seem systematically to have identified regulatory inadequacies, and migrated to stronger regulatory environments. So, competition-based discipline on lax regulation seems not to have worked. In order for each state to reduce risk through regulatory reform, states must work together to avoid cross-border harm that is not fully taken into account in national decision-making, and to avoid detrimental regulatory competition. They must work together to make rules, but they must recognize that our vision of the future is limited, and so they must establish institutions that will allow them to revise rules and institutions, as necessitated by unfolding change.

The ‘Santiago Principles’ for Sovereign Wealth Funds: A Case Study on International Financial Standard-Setting Processes

admin — Fri, 03 Dec 2010 09:47:04 +0000

This article considers the subject of ‘multi-level governance’ respecting ‘ “regulatory” financial standard-setting’ through the lens of the 2008 ‘Santiago Principles’ and 2009 establishment of the International Forum of Sovereign Wealth Funds. Upon a US initiative, the matter fell on to the policy plate of the G-20 Finance Ministers and was then translated into ‘administrative marching orders’ for the International Monetary Fund (IMF), Organisation for Economic Co-operation and Development (OECD) and World Bank to work with the major sovereign wealth funds (SWFs) and others in devising a set of ‘best practices’. What transpired has been a sui generis, ad hoc, ‘multi-level, rule-oriented governance network process’. The immediate ‘deliverable’ has been a set of ‘international best practices’ (Santiago Principles). The related International Forum of Sovereign Wealth Funds encapsulates a new ongoing ‘institutional’, ‘administrative’, and ‘qualified self-regulatory’ process for implementing, interpreting, revising, adjusting, monitoring, and assessing these Principles and for further fostering their global acceptance as part of the post-global-financial-crisis ‘international architecture’. These developments add a new component to the global capital markets and to the proliferation of ‘global administrative networks’ and related ‘soft law regulation’ in the area of international economic financial law. Tangentially, this SWF phenomenon raises the question of the interconnected roles of the IMF, OECD, World Bank, United Nations, International Labour Organization and World Trade Organization, along with the related-linked ‘soft law, regulatory network(s)’, in the ‘new international financial architecture’.

Multilayered Governance in International Financial Regulation and Supervision

admin — Fri, 03 Dec 2010 09:47:04 +0000

In recent decades, financial markets have become increasingly international in scope, while the focus of financial regulation and supervision has largely remained limited to the domain of national jurisdictions. This article applies the doctrine of multilayered governance to financial markets, thereby addressing the discrepancy between international financial activities and nationally oriented financial regulation and supervision. It identifies core values that are widely shared within the international community, including the regulatory goals of financial stability and market integrity and the importance of confidence in the functioning of financial markets. The article argues that the scope of financial activities, the importance of regulatory objectives and the level of detail could serve as criteria for assessing how financial regulation should be allocated to the different levels of governance. In the proposed setting, standards could be a key to establishing multilayered governance as they allow for flexible adaptation of internationally agreed rules to national or regional particularities. Regarding financial supervision, the article highlights the importance of supervisory colleges or peer review procedures as a layer in between nationally based supervision and international supervisory standards.

The Role and Prospects of International Law in Financial Regulation and Supervision

admin — Fri, 03 Dec 2010 09:47:04 +0000

The financial crisis of 2007–09 resulted in, inter alia, challenges for governments to modify financial regulation and supervision so as to ensure stability of financial markets without unduly hindering dynamic market developments. Moreover, the inherent transnational character of any financial market instrument nowadays has to be taken into account. This article discusses the proper allocation of powers in terms of harmonization and decentralization. It addresses conceptual challenges for contemporary financial regulation and supervision based on the idea of regulatory competition. While harmonization should be further pursued, regulatory competition based on a sound international framework of cooperation and coordination is central for successful financial regulation and supervision. There is no one-size-fits-all approach.

The International Monetary System: A Look Back Over Seven Decades

admin — Fri, 03 Dec 2010 09:47:04 +0000

This article offers a historical account of the genesis and development of the International Monetary Fund (IMF). The original design and functions are discussed and subsequent changes described, in particular the advent of floating currencies in 1971 in place of the original fixed exchange rate regime based on the US dollar. Ever since then, the IMF has not seen itself as being in a position to assume its main functions among industrialized countries. In particular, surveillance based upon Article IV procedures did not develop and mature. The article recalls some of the most important interventions of the Fund and reactions by countries affected. It concludes by addressing potential functions of the Fund to prevent future global financial crises.

Why Soft Law Dominates International Finance–and not Trade

admin — Fri, 03 Dec 2010 09:47:04 +0000

International financial law is in many ways a peculiar instrument of global economic affairs. Unlike international trade and monetary affairs, where global coordination is directed through formal international organizations, international financial law arises through inter-agency institutions with ambiguous legal status. Furthermore, the commitments made by regulatory officials participating in such forums are non-binding. This divergence is perplexing, especially when comparing international financial law to international trade. Both trade and finance comprise key areas of ‘international economic law’ and their rules have important distributive consequences for global markets and market participants. This article suggests that in order to understand soft law’s value as a coordinating mechanism, an institutional assessment of the way that law is enforced is necessary. Under close inspection, international financial law departs from traditional public international law notions of informality and can in fact be ‘harder’ than its soft-law quality suggests. This feature helps explain why international financial rules, though technically non-binding, are often relied upon. The predominance of international soft law in finance does not, however, imply that it is without flaws, and this article highlights important structural deficiencies that the World Trade Organization, a more mature legal regime, largely avoids.

In Search of Relevant Discretion: The Role of the Mandatory/Discretionary Distinction in WTO Law

admin — Sat, 03 Jul 2010 09:59:22 +0000

When deciding whether a general rule is inconsistent with the law of the World Trade Organization (WTO), a distinction has been drawn between rules that ‘mandate’ violations of WTO law, and rules that provide the ‘discretion’ to violate WTO law. Measures that include a discretionary element have, under the ‘mandatory/discretionary distinction’, been saved from a finding that they are ‘as such’ WTO-inconsistent. This article explores how the mandatory/discretionary distinction has been developed and applied in WTO law. It also questions the sharp divide between ‘mandatory’ and ‘discretionary’ measures that is implied by the distinction; and it argues that discretion comes in different forms, which should not all have the same relevance when assessing the WTO-consistency of rules. The article proposes a basic taxonomy involving three different types of discretion: the discretion to adopt or withdraw rules; the discretion to apply or not apply rules; and the discretion to select meaning through the interpretation and application of rules. For each category, the article offers views on the relevance of that type of discretion in examining the WTO-consistency of a general rule.

Below-market Interest in International Claims Against States

admin — Sat, 03 Jul 2010 09:59:22 +0000

The article deals with an important but strange contradiction in international legal practice. The official doctrine provides that states must fully compensate all damage caused by an internationally wrongful act. Yet, when it comes to compensating the injured party for the delay caused by the state’s failure to compensate promptly (usually awarded in the form of interest on the direct damages), international tribunals almost universally shy away from awarding the full economic measure of interest. The consequences of the systematic undercompensation of claimants in international law assume special gravity because of the long period of time that typically elapses between the injury and the award by a tribunal or claims commission. The delay commonly exceeds three years and sometimes extends to 10 or 15, during which time the value of an interest award begins to overshadow the value of the direct damages award itself. This institutionalized undercompensation of claimants occurs in every international human rights case, and more often than not elsewhere, from wrongful expropriation of property cases to breach of international contract claims. This article analyzes and attempts to explain this disconnection between doctrine and practice, and to relate it to the nature of the international decision-making process.

When will the Protocol Amending the TRIPS Agreement Enter into Force?

admin — Sat, 03 Jul 2010 09:59:22 +0000

The Protocol Amending the TRIPS Agreement (or the TRIPS Amendment) is the first and, so far, only amendment of a core WTO agreement. It was intended to provide an expeditious solution to the difficulties that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face in making effective use of compulsory licensing under the TRIPS Agreement. The number of WTO Members that have accepted the Protocol since its adoption in December 2005 is far fewer than the total required for the amendment to enter into force. The number of further acceptances required for the amendment to take effect is no longer a straightforward matter because the European Union has deposited an instrument of acceptance of the Protocol while its individual Member States have not. The treatment of the EU Member States as regards acceptance of the TRIPS Amendment has implications for future amendments of WTO agreements, such as the eventual results of the Doha Round.

The Critical Success of the WTO: Trade Policies of the Current Economic Crisis

admin — Sat, 03 Jul 2010 09:59:22 +0000

This note addresses the trade policy measures states have taken during the current economic crisis and makes comparison with those taken during the Great Depression. While significant protectionist pressures are evident in both crises, the note finds that WTO Members have largely resisted broad protectionist measures and that the further decline in global trade volume during 2009 cannot be attributed to discretionary trade policies. Given these observations, the note suggests four elements of the multilateral trading system that preserve the system’s integrity and ensure that the WTO passes its most significant stress test yet. Based on these four elements—economic efficiency, transparency, enforceability, and stability—the note recommends normative principles applicable to all regulation of international economic relations.

Ninth Annual WTO Conference: An Overview

admin — Sat, 03 Jul 2010 09:59:22 +0000

(No abstract is available for this citation)

Legal Principles in WTO Disputes. By ANDREW D. MITCHELL

admin — Sat, 03 Jul 2010 09:59:22 +0000

(No abstract is available for this citation)

Import Safety: Regulatory Governance in the Global Economy. Edited by CARY COGLIANESE, ADAM M. FINKEL and DAVID ZARING.

admin — Sat, 03 Jul 2010 09:59:22 +0000

(No abstract is available for this citation)

Civilising Globalisation. Human Rights and the Global Economy. By DAVID KINLEY

admin — Sat, 03 Jul 2010 09:59:22 +0000

(No abstract is available for this citation)

Open for Business? China’s Telecommunications Service Market and the WTO

admin — Sat, 03 Jul 2010 09:59:22 +0000

China joined the World Trade Organization (WTO) in 2001 after almost 15 years of negotiations, making extensive commitments to open its markets to foreign investment and liberalize trade in goods and services. China represents a huge potential market for foreign telecommunications service providers; yet, in practice, foreign involvement in this market is extremely limited. This article identifies key commercial and legal barriers to foreign entry into China’s telecommunications service market, exploring areas of apparent non-compliance with WTO rules and China’s justifications for its current approach. This research provides a case study of China’s WTO compliance, the significance of obligations contained in China’s Accession Protocol, and the meaning of Members’ WTO commitments more generally under the General Agreement on Trade in Services. The article raises important considerations for China as it finalizes its telecommunications law, which has been in the drafting stages for many years.

Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in WTO Jurisprudence

admin — Sat, 03 Jul 2010 09:59:21 +0000

Anonymous individual opinions in World Trade Organisation (WTO) jurisprudence are occurring more frequently. This article describes and critiques the 14 individual opinions expressed to-date; discusses related legal issues; and compares the position in other international courts. It argues that the WTO strikes a balance by permitting individual opinions, if in the report and anonymous; but that 10 of the 14 were incorrect or unnecessary, and the others avoidable. It further argues that different views are adequately recorded in the summary of the parties’ arguments or the Dispute Settlement Body (DSB) minutes; and that if the Dispute Settlement Understanding (DSU) (Understanding on Rules and Procedures Governing the Settlement of Disputes) is functioning correctly, the collective intelligence of reasonable judges should lead them to common ground. Considering some of the particular characteristics of the WTO compared to other international courts, the article concludes that it is in the long-term interests of the WTO that individual opinions remain exceptional.

Redesigning the Negotiation Process at the WTO