The article recalls the origins of the problem of the bananas trade war between the EU, several Latin-American countries and the US. It describes in a nutshell the numerous attempts to find a solution to this trade conflict through the WTO-Dispute Settlement Mechanism. It then analyses the legal, economic, political and procedural aspects of the negotiations from the 'Good Offices' Process in the WTO to the final negotiations of the Geneva Agreement on Trade in Bananas (GATB). Finally the article assesses the possible benefits of the GATB for the main parties involved in the GATB.

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ISSN: 1011-6702
ID: TRAD2012001

In the wake of devastating floods in Pakistan in 2010, the European Union (EU) has attempted to use trade policy to provide humanitarian assistance by the temporary lowering of tariffs on select imports from Pakistan. This Proposal, justified on humanitarian grounds, requires a World Trade Organization (WTO) waiver, which so far has not been possible, amidst developing countries' concerns regarding erosion of the value of their preferential access to the EU market. A detailed examination of the EU Proposal indicates marginal benefit to Pakistan at best, given that sensitive import-competing products were largely excluded, suggesting that protectionist interests had a hand in shaping the policy. The findings also suggest that trade policy might not be an effective means to provide humanitarian assistance.

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ISSN: 1011-6702
ID: TRAD2012002

The existence and the use of Trade  Defence Instruments (TDIs) are controversial. In the present article, we will argue that the present set of rules has advantages and deficiencies. We will argue that a better set of rules can be worked out for an ideal world but that we are not ready for an ideal world. In the meantime, we need to work with the rules as they exist.

Even for the implementation of the existing rules, we can think of a radically different manner to proceed, for instance, by organizing the policy implementation at central level, in the WTO. Here again, we may be in dreamland for the years to come.

When we then move to the real world, we will argue that the way forward lies in increasing the quality of the work by all the authorities that implement TDI and by increasing the communication and cooperation between those authorities. This may lead to reducing trade friction caused by cases.

We will describe a major effort undertaken by the European Union to implement a quality management programme and we will discuss the possibilities for the authorities of EU's trading partners to cooperate in this effort and to benefit from it.

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ISSN: 1011-6702
ID: TRAD2012003

The Australian Government announced in April 2011 that it will no longer include arbitration clauses in its investment treaties but will provide that investment disputes between foreign investors and host states be heard by the domestic courts of those host states instead. This statement reflects doubts by a developed state about the efficiency of bilateral investment treaties (BITs) in general and investment arbitration in particular. It also raises the question whether other countries will follow particular strategies to suit their discrete needs. One ramification is that resource wealthy states will make tactical decisions, such as entering into BITs only with capital exporting countries, as South Africa has declared. Another is whether developed states will avoid concluding BITs with developing countries whose domestic court systems are unknown or mistrusted. Yet another issue is how a policy statement, such as enunciated by Australia, will impact on its ability to attract foreign investment while protecting its national interests and also its investors abroad. This article deals with these issues, highlighting the significance of competing dispute resolution options in addressing the issues.

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ISSN: 1011-6702
ID: TRAD2012004

Since the establishment of the Cooperation Council for the Arab States of the Gulf (Gulf Cooperation Council (GCC)) in 1981, its Member States (the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman, the State of Qatar, the Kingdom of Saudi Arabia, and the United Arab Emirates) have pursued economic and monetary integration further to the constituent aim of the Charter of the GCC for regional cooperation.

With that aim, the Economic Agreement of 1981 established a Free Trade Area, operational since 1983, in the expectation that it would promote regional trade creation and, in turn, greater economic and monetary integration among the Member States. However, most of its provisions for an Economic and Monetary Union (EMU) never took effect.

Thus, twenty years after its entry into force, the GCC Supreme Council agreed to revise the terms of the Economic Agreement. The Economic Agreement of 2001 now regulates the economic programme of the GCC.A timetable for the establishment of a Monetary Union was approved at the same time with a proposal to introduce a single currency by 1 January 2010. However, only four of the six Member States (Bahrain, Kuwait, Qatar, and Saudi Arabia) have concluded the Monetary Union Agreement of 2008 and, to date, the single currency remains a proposal only.

The GCC has failed to achieve any significant level of economic and monetary integration: ultimately, the EMU and single currency are yet to materialize. On that premise, the article critiques the scope and effect of implementation of the Economic Agreements of 1981 and 2001 as it examines the origins and development of economic and monetary integration in the GCC.

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ISSN: 1011-6702
ID: TRAD2012005

The proliferation of regional or bilateral Free Trade Agreements (FTAs) has seen the adoption of an increasing number of TRIPS-plus measures to provide heightened levels of intellectual property protection. One implication is that protection of public health may be affected if access to medicines is restricted by the relevant patent provisions in these TRIPS-plus provisions.

The interpretation approach adopted by WTO has led to an understanding of TRIPS in a manner supportive to public health. Many FTAs have established their own interpretation approach that will also impact on issues concerning access to medicines and public health. The patent provisions in the TRIPS-plus provisions seem to cause conflict between the protection of public health in TRIPS and that in TRIPS-plus regimes if higher levels of patent protection are adopted in FTAs.

This article analyses the relationship between the approaches to interpretation of TRIPS and TRIPS-plus and discusses the impact of this interpretive relationship. This article examines the object and purpose of TRIPS and its subsequent developments for the interpretation of TRIPS-plus. This article then discusses the justification of heightened patent protection in the TRIPS-plus and the justification narrative upon the interpretation of the patent provisions in FTAs. This article then concludes that the interpretation of the patent protection provisions in the TRIPS-plus should be conducted with reference to TRIPS and its subsequent developments in order to harmonize TRIPS and TRIPS-plus in the context of public health protection.

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ISSN: 1011-6702
ID: TRAD2012006

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

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ISSN: 1011-6702
ID: TRAD2012007

The main purpose of this paper is to investigate and analyse foreign direct investment (FDI) regimes and their screening processes, institutional frameworks, and business environments in world trade. China's FDI regime is specifically compared with that of the United States, Australia, Canada, and the United Kingdom. Other countries (France, Germany, Japan, Hong Kong, and Switzerland) were also included in the discussion to evaluate their regulatory and investment issues. By using interdisciplinary literature, secondary data, and research surveys and reports from multilateral institutions, the study investigates the changing profile of FDI regimes in world trade. The paper reveals that China's FDI regime has embraced significant changes to attract foreign investment. Currently, the Chinese market is open yet restricted in its own regulatory environment and institutional hurdles. Investment regimes in the United States, Australia, Canada, and the United Kingdom continue to change to attract foreign investment that is critical to their economies. We believe that more country- and industry-specific studies are needed to investigate FDI regimes and their institutional frameworks. In today's world trade, China is particularly an interesting case study since the country aggressively attracts foreign investment while keeping its hybrid economy. Policymakers, multinational corporations (MNCs), governments, and researchers need to pay attention to today's changing FDI regimes because of growth opportunities and MNC expansion. The study provides useful discussion and meaningful implications that can be used by policy analysts and practitioners worldwide.

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ISSN: 1011-6702
ID: TRAD2012008

This paper presents an empirical exercise with the aim of adressing the following research questions: (a) how vulnerable is India's trade to any future border carbon adjustments in the European Union (EU) and (b) which sectors/items are most likely to be affected? The exercise is based on the EU List released in December 2009, in which the bloc has identified 164 (sub)sectors as deemed to be exposed to a significant risk of carbon leakage. In light of the finding that the Harmonized System's (HS) six-digit items corresponding to the (full) EU List comprise the lion's share of India's exports to the EU, it is argued in this paper that there is a very high probability of any such border measure having a considerable impact on India's exports to the bloc. The study further reveals that even if the EU decides to leave the 117 highly trade-intensive but low carbon-intensive sectors (included in the EU List) outside the ambit of any future border carbon adjustments, the overall vulnerability of India could still be quite high. Among the four BASIC countries (namely, Brazil, China, India and South Africa), India appears to be the second-most vulnerable, after South Africa.

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ISSN: 1011-6702
ID: TRAD2012009

On 3 October 2006, the European Union (EU) initiated a new generation Free Trade Agreement (FTA) policy in Global Europe: Competing in the World. Market potential and protection level were set out as the key economic criteria for new FTA partners. Based on these criteria, South Korea emerges as one of the EU's priorities. The EU-Korea FTA, signed on 6 October 2010, is the first of a new generation of FTAs. The Agreement is very comprehensive with regard to trade liberalization in a number of fields, including services, investment, competition, enforcement of intellectual property rights (IPRs), government procurement, sustainable development, cultural cooperation, and so on. Many of these policy areas are still not well regulated by the World Trade Organization (WTO). Under the Lisbon Treaty, EU trade policy shall be conducted in the context of the principles and objectives of EU foreign policy. Leveraging trade and foreign policy is expected to strengthen the EU's position in negotiating new FTAs. This article takes the EU-Korea FTA as a case study to examine the following core issues: the historical background of the EU's trade policy, legal basis and decision-making procedure of the new generation FTA, the main contents and special features of the EU-Korea FTA, and the impacts of the EU-Korea FTA on the WTO and third countries. For the future development of EU's FTA policy, this article also proposes an open regionalism approach to make the FTA compatible with the WTO.

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ISSN: 1011-6702
ID: TRAD2012010

The Aid for Trade (AfT) initiative has gained much popularity since its launch at the World Trade Organization (WTO)'s Ministerial Conference in 2005, and there are ongoing discussions on its effectiveness and potential to improve the integration of developing countries (DCs) into the world economy. This article contributes to the debate by analysing AfT in a political economy context. We find that the delivery of AfT is a precondition for trade reform and trade-enhancing rule-making in DCs and may cushion adjustment problems to trade liberalization. Accordingly, AfT can be a catalyst of trade reforms domestically and internationally.

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ISSN: 1011-6702
ID: TRAD2012011

This article examines the legal framework governing economic relations between the United States and the Association of Southeast Asian Nations (ASEAN) and outlines a roadmap for a US-ASEAN Free Trade Agreement (FTA). Notwithstanding ASEAN's emerging centrality in Asian regionalism, America remains the only Pacific power that has not concluded any form of FTA with ASEAN. This article explains that limited progress in Washington's efforts stemmed from the domestic politics of the US Trade and Investment Framework Agreement (TIFA) approach and the Myanmar dilemma. It further analyses the challenges that the Trans-Pacific Partnership (TPP) Agreement negotiations have encountered and contends that the TPP cannot be a substitute for a US-ASEAN FTA. Finally, a 'Plan B' roadmap to reinvigorate US-ASEAN trade ties is proposed. This roadmap calls for an enhanced TIFA that incorporates the building block features of ASEAN's framework agreements, thereby laying a solid yet gradual foundation for an FTA. This research therefore provides a valuable study of a region-based FTA under the multilateral trading system.

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ISSN: 1011-6702
ID: TRAD2012012

The interpretation of GATS Article V, which deals with economic integration, is of crucial importance to the growing number of economic integration agreements (EIAs) in services, in terms of dispute settlement, services negotiations, the WTO review of EIAs, the coordination between multilateralism and EIAs, and best practices in drawing up EIAs. However, the Article has received insufficient study and remains vague. This paper takes China's eight EIAs as test cases for interpreting GATS Article V and argues that GATS commitments may be an appropriate threshold for interpreting the Article, in particular the substantial sectoral coverage and elimination of discrimination requirements, which are probably among the major challenges.

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ISSN: 1011-6702
ID: TRAD2012013

One of the main drivers of Sino-European cooperation has been the prospect of a mutually beneficial division of labour. In the best classic liberalist tradition, it was the Chinese government that nurtured a sense of economic harmony. This paper shows that a mutually beneficial partnership has not emerged. Departing from a detailed six-digit commodity export dataset, it demonstrates that the division of labour has blurred. Furthermore, Europe's growing deficits on the current account balance were not offset by inflows on the financial account. All these are symptomatic for the twin distortions that have developed in China and Europe, twin distortions that now require difficult twin adjustments. However, while both sides preach the need for rebalancing, they tend to persist in unsustainable policies, which will still most likely lead to panic and protectionism. In that regard, the Sino-European relations reveal compellingly that politically induced imbalances cause havoc in international trade relations, even if there were no initial intentions to harm other countries' economic interests, and that the optimist narratives of harmony of economic interests cannot be trusted, as long as they are not matched by free markets.

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ISSN: 1011-6702
ID: TRAD2012014

 Multilateral and regional trade integration has become quite complex these days, very often involving states that pursue simultaneous economic arrangements, envisaging different liberalization and integration agendas. With such integration being so much intertwined, an obvious question arises whether concurrent participation of one state in several regional trade frameworks is legally and technically possible and which criteria should be met in this case. This article examines a particular example of Ukraine - a World Trade Organization (WTO) member - in its ongoing regional integration processes both to the West (free trade agreement (FTA) with the European Union (EU)) and to the East (Customs Union (CU) with Belarus, Kazakhstan, and Russia) through the prism of mutual compatibilities and WTO rules on regional trade integration. An assessment of the compatibility issue arising from various forms of economic integration has proved to be critical for the accurate analysis of any country's compliance with the WTO commitments. This article concludes that regional integration of Ukraine to the East requires careful considerations and structural redesigns. The recently discussed mode of integration into the CU would invoke legal and procedural difficulties for Ukraine in aligning it with the WTO rules as well as with its integration to the West. To this end, this article presents some practical observations concerning compatibility between Ukraine's different integration agendas and provides possible solutions to overcome legal problems arising thereof. The lessons derived from this article can be applied mutatis mutandis to other regional frameworks.

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ISSN: 1011-6702
ID: TRAD2012015

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ISSN: 1011-6702
ID: TRAD2012016

The Internet has facilitated a new wave of economic growth and development. Businesses across the world - both big and small - have taken advantage of the scale, scope, and access that the Internet provides to reach new markets and consumers. A small business in rural America can now reach an individual consumer in the European Union (EU) without any physical footprint in the EU. This type of transaction was not possible before the advent of electronic commerce (e-commerce). Moreover, this type of transaction requires a revaluation of a trade regime that was created with only the largest multinational corporations able to truly engage in international trade.

The US has created trade policy governing cross-border e-commerce transactions largely through recent free trade agreements (FTAs). Since 2000, every FTA the US has signed has contained a chapter on e-commerce. These chapters have included important protections for the digital economy (e.g., no tax on digital goods, transparency in regulation, and free flow of information).Yet, these chapters have often taken a very narrow view of the issues that they have sought to tackle. It is worthwhile, a decade after these provisions were first written, to revisit and update them to better reflect the nature of modern e-commerce.

There are a number of additional issues that are imperative to e-commerce that have not been addressed in past trade regulation. E-commerce often results in the cross-border transfer of digital services. These digital services must be protected against trade-distortive and domestic discriminatory preferences. Moreover, nation-states often rely on narrow interpretations of intellectual property law to restrict the cross-border transfer of e-commerce products and services.

These non-traditional barriers to trade must be broken down. Internet intermediaries provide essential services that drive e-commerce. Strong limitations on liability must be guaranteed for these intermediaries. Finally, small businesses are only starting to engage in e-commerce. Future trade regulation should facilitate the growth of small businesses engaged in e-commerce.

This article begins by describing the rapid growth of the e-commerce economy. It then reviews the history of past US free-trade agreement e-commerce provisions and suggests how to improve and update these provisions. The document then describes a host of additional e-commerce related issues that should be addressed in trade policy moving forward.

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ISSN: 1011-6702
ID: TRAD2012017

This article shows first that, despite significant trade gains expected from the Euro-Mediterranean Agreements, especially the Barcelona Agreement, actual gains are positive but small. The reasons for such small effects are investigated. They include delays in the implementation of the tariff schedule, the lack of European Union (EU) market access for agricultural products, the persistence of non-tariff barriers, the lack of regional integration in terms of services and Foreign Direct Investment (FDI), the role of rules of origins, the impact of inappropriate specialization, etc. This appraisal makes it possible to suggest several policy options which are necessary to optimize the effects of the Euromed partnership. In this regard, the Arab Spring creates new opportunities to reinforce trade integration in this area.

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ISSN: 1011-6702
ID: TRAD2012018

The debate on 'exchange wars and trade wars' is raising the attention of experts on international trade and economics. The main purpose of this paper is to analyse the impacts of exchange rate misalignments on one of the most traditional trade policy instruments - tariffs, as defined by the World Trade Organization (WTO). It is divided into three sections: the first one examines the effects of exchange rate variations on tariffs and its consequences for the multilateral trade system; the second explains the methodology used to determine exchange rate misalignments and also presents its results for Brazil, US and China; and the third summarizes the methodology applied to calculate the impacts of exchange rate misalignments on the level of tariff protection through an exercise of 'misalignment tariffication'.

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ISSN: 1011-6702
ID: TRAD2012019

Third country anti-dumping actions were envisioned at the very inception of the General Agreement on Tariffs and Trade (GATT) and yet almost completely neglected by most governments throughout the GATT/World Trade Organization (WTO) history. The requirement for prior approval by multilateral trade institutions became a formidable procedural obstacle for any country seeking third country anti-dumping duty (AD) actions. Despite such difficulties, there were only few attempts to effectively employ such actions and several legal arrangements to refine the rules for third country AD actions. This article investigates the origin and historical development concerning third country AD actions and examines their implications for the current WTO system that is congested with numerous Free Trade Agreements (FTAs).

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ISSN: 1011-6702
ID: TRAD2012020

Keywords:
Exclusive rights exhaustion, national, regional and international exhaustion, parallel imports, TRIPS Agreement

Parallel imports, one of the most complex and confusing phenomena of international trade, are a natural consequence of the doctrine of exhaustion. There exists a considerable divergence among the scholars regarding the need for harmonization of the 'principle of exhaustion' and parallel import laws. In this paper, we critically examine the need for harmonization of parallel import laws by analysing the economic considerations and consumer welfare aspects of different systems of exhaustion of rights. We also present the available sparse empirical evidence pertaining to the same. Prima facie the arguments for a minimum international legal standard of exhaustion doctrine in the TRIPS Agreement appear convincing. However, there is a lack of corroborative empirical evidence. Therefore, this may not be an appropriate time for the WTO to move ahead on this contentious issue, especially when it is standing at crossroads on several other major issues.

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ISSN: 1011-6702
ID: TRAD2012021

The Organization for Economic Co-operation and Development (OECD) has pioneered global governance in three areas of vital importance to international commerce: competition, foreign direct investment, and tax policy. The results have varied sharply; most national policy change has resulted from policy diffusion in which the OECD role was supportive but not critical. Greater consistency among states in competition policy has been thwarted by differing objectives, legal systems, administration, and penalties. The Multilateral Agreement on Investment (MAI) failed mainly because the problems it addressed lacked urgency. This contrasts sharply with some OECD tax activity that has focussed on urgent needs for greater international policy congruence.

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ISSN: 1011-6702
ID: TRAD2012022

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ISSN: 1011-6702
ID: TRAD2012023

Economic stress is often thought to be a source of protectionism, which motivated Leaders of the new G-20 to promise repeatedly that they would refrain from trade restrictions in response to the global financial crisis that became apparent in 2008.They also promised to hold themselves accountable for this commitment using a novel transparency mechanism based in the World Trade Organization. At the same time a civil society organization, the Global Trade Alert, set itself up as an alternative accountability mechanism. The WTO and the GTA reached different conclusions both about how loudly the protectionist dog barked, and about whether G-20 governments kept their promises. I conclude from a detailed comparison of GTA and WTO data and interpretations using the notion of an 'accountability regime' that the protectionist dog did not bark, allowing inferences to be drawn from this curious incident about how transparency can help to close the gap between commitment and action, thereby contributing to accountable global governance.

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ISSN: 1011-6702
ID: TRAD2012024

The examination of the relationship of WTO and other international organizations (IOs) has been mostly seen through prism of fragmentation of international law and institutions. This is fully understandable given that different IOs have received uneven treatment at the WTO, including in dispute settlement. This is a sign of an inconsistent and fragmented landscape of international legal order with different IOs playing differently defined roles, even within the narrow field of WTO dispute settlement. While many remedies have been offered to cure the problem, this article examines institutional fragmentation by using the example of interaction between the WTO and WCO. While the cooperation between the WTO and WCO has been quite prolific, the central question addressed in this article is to what extent this cooperation model can serve as reference for the WTO judiciary in shaping its interactions with other IOs and what would be the factors for such assessment.

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ISSN: 1011-6702
ID: TRAD2012025

This article is about the World Trade Organization's Doha Round negotiation on industrial tariffs - i.e., WTO law making process. We make a number of observations on the most recent negotiating text, the December 2008 modalities, based on simulations of its implementation for different types of WTO members. The imports of developed countries and advanced developing countries, which represent one third of the WTO membership but 95% of world trade, are liberalized to a small degree. The other two thirds of the WTO membership are covered under a complex web of special categories and exceptions that calls into question their future participation in the international trading system. Moreover, the tariff reductions are to be achieved in a highly differentiated manner across WTO members. All the different cases and carve outs in the text are like cushions that members use to avoid undertaking a more significant trade liberalization, but in doing so they also defeat the Doha mandate in terms of the degree of ambition required.

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ISSN: 1011-6702
ID: TRAD2012026

Historically, the mandatory/discretionary distinction has been used as a deference tool in the WTO 'as such' cases. In recent years, the distinction has experienced fundamental changes from a threshold consideration to an analytical tool, and its legal status and implication is increasingly subject to confusion and suspicion. This article proposes a reformulation of the distinction as an analytical tool. The proposal retains the rationale underlying the distinction, i.e. the presumption of good faith, and is formulated as an evidentiary technique that influences evidence evaluation. It has the prospect of serving the function of a deference tool while providing certainty and consistency to the jurisprudence of 'as such' cases.

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ISSN: 1011-6702
ID: TRAD2012027

On 5 September 2011, the WTO issued the Appellate Body report for the first WTO case on a transitional product-specific safeguard measure, United States - Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China (U.S. - Tyres). Transitional product-specific safeguard measures (TSMs) are controversial primarily on two grounds. First, unlike a general safeguard measure (GSM) which must be applied non-discriminatorily to all imports regardless of their source, a TSM is applicable only to the imports from a single country, China. Second, a TSM is applicable under more relaxed conditions than those stipulated for a GSM, subjecting imports from China to a more vulnerable condition against the protectionist pressure from competing domestic producers of the importing countries. The core principle of the WTO disciplines, including those for safeguard measures, is the most-favored-nation (MFN) principle which stipulates the requirement of non-discrimination among nations, and the inherently discriminatory nature of TSM undermines this core principle. This article examines the TSM provisions in comparison to the general safeguard provisions and discusses the implications of the first WTO case, U.S. -Tyres, for the TSM regime.

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ISSN: 1011-6702
ID: TRAD2012028

An important task the WTO faces in pursuit of universality is the integration of non-members. Yet, becoming a member of the multilateral trade system is not easy. Accession to the WTO is a complicated and cumbersome process which, on average takes ten years to complete. Drawing from historical institutionalism, the article claims the current politics of WTO accession is better understood with an appreciation of GATT accession. The establishment of the WTO did not bring with it a change in accession procedures. Consequently, it is argued the difficulties and haphazardous process associated with WTO accession is best valued in light of how original accession procedures developed and evolved under the GATT. The paper finds that the current politics of WTO accession have been shaped by a rigid asymmetric path dependency.

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ISSN: 1011-6702
ID: TRAD2012029

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

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ISSN: 1011-6702
ID: TRAD2012030

The World Trade Organization (WTO) is in crisis with all three of its main functions in decline. Most conspicuously, the negotiations in the Doha Round are stalled because of the profound shift in trade and economic power and after the repeated failure of a negotiating approach which ignored the lessons of the Uruguay Round, a round which succeeded by building consensus at the technical level before trying to take it to the political level. As a result of an excessive concentration on the negotiations, monitoring and surveillance of the implementation of WTO rules have been seriously neglected. It is most alarming that dispute settlement, the main focus of the paper and long considered the area in which the WTO has been most effective, is now in danger of losing the confidence of Members, following a series of questionable rulings by the Appellate Body. The Appellate Body Report on US - Definitive Anti-dumping and Countervailing Duties on Certain Products from China is a remarkable illustration of this troublesome situation.

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ISSN: 1011-6702
ID: TRAD2012031

Artificially undervalued currencies are giving an unfair competitive advantage to some World Trade Organization (WTO) Members, nullifying the trade protections of other WTO Members and undermining the predictability and credibility of WTO rules. A threshold dividing legal and illegal devaluations, from the Agreement on Subsidies and Countervailing Measures (ASCM) standpoint, must be drawn to address this issue. This paper argues that such a threshold is exceeded when a WTO Member's measures undervalue its currency far below an equilibrium level and for more than the time needed to address economic imbalances. In this scenario, an artificially undervalued currency may amount to a countervailable subsidy actionable under the ASCM.

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ISSN: 1011-6702
ID: TRAD2012032

Commitments in regional trade agreements (RTAs) that fall short of the same countries' obligations under the General Agreement on Trade in Services (GATS) are a relatively frequent phenomenon. However, they have gone widely unnoticed in the literature to date and drawn little attention in World Trade Organization (WTO) fora. Nevertheless, such 'minus commitments' are poisonous. Given the broad definitional scope of the GATS, extending inter alia to commercial presence, they may affect third-country investors, cast doubts on the status of the respective agreements under the GATS and have severe implications for the trading system overall. Without clear cross-references to existing GATS commitments, many RTAs remain insulated and are virtually impossible to multilateralize. This study seeks to develop a reasonably comprehensive picture of the frequency of 'minus commitments' and their dosage in terms of sectors, measures and modes of supply. It also discusses potential remedies from a WTO perspective.

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ISSN: 1011-6702
ID: TRAD2012033

The ongoing fisheries management discussions, held at the World Trade Organization (WTO) in the context of the fisheries subsidies negotiations, can influence the highly debated WTO legal parameters for the assessment of national environmental regulation addressing non-product-related processes and production methods (PPMs).This can be the case because the harmonization of fisheries management standards entails legal and political aspects analogous to the harmonization of environmentally-friendly PPMs among sovereign entities, and this process happens for the first time within the WTO. This article analyses the extent to which this harmonization process is informed by regulatory and standard-setting guidelines drawn respectively from WTO jurisprudence and an array of relevant international instruments; at the same time, it argues that the fisheries subsidies negotiations can result in the WTO taking a more definite position on the 'issue' of environmental PPMs.

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ISSN: 1011-6702
ID: TRAD2012034

The current World Trade Organization (WTO) regime on export restraints comprises two extremes: at one end is the near-complete freedom to levy export duties enjoyed by most Members, which renders the WTO discipline on export restrictions largely ineffective; at the other end, the rigid obligations imposed on several acceding Members prohibiting the use of export duties for any purpose. The recent WTO ruling in China-Raw Materials has only solidified the latter extreme. This article seeks to expose the irrationality of the current regime, especially the problems created by the rigid obligations of the several acceding Members. It contends that such obligations deprive these Members of their ownership right to claim a larger share of their natural resources for domestic use and of an effective tool for managing environmental externalities associated with the resource products exported. The virtual immutability of such obligations is at odds with the principle of permanent sovereignty over natural resources. To rectify these problems, this article proposes integrating all stand-alone export concessions into General Agreement on Tariffs and Trade (GATT) schedules, which would provide the acceding Members with the policy space and flexibility available under the GATT. It is also submitted that the key to gaining support from developing countries for the establishment of a system-wide discipline lies in the recognition of legitimate functions of export duties. Rather than pushing for their elimination, the WTO should aim to regulate export duties in the same manner as its regulation of import duties.

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ISSN: 1011-6702
ID: TRAD2012035

China is embracing free trade agreements (FTAs).This article tries to probe into whether China has an FTA strategy, presuming that launch of FTAs emanates from the interaction between the decision-making mechanism in the trade area and the potential limits of the guiding principles. It argues that China will likely keep concluding more FTAs to weave an FTA net once technical evaluations lead to positive indicators for FTA negotiations. However, China's complicated structure of trade policy-making mechanism may also hinder its ability to conclude, especially when the bureaucratic actors are not in a position to evaluate the ripeness of the timing for a launch of FTA negotiations with a particular country in terms of the political considerations involved.

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012036

Trade in genetically modified (GM) products remains a major issue in international trade. In 1999, the EU imposed a temporary import ban on genetically modified organisms. In the wake of aWorld Trade Organization (WTO) case brought by the US and Canada against the import ban - which the EU lost - the EU put in place a new regulatory regime for GM products. As of March 2012, the operation of this new import regime has not been formally assessed. The first GM-crops are just now working their way through the post-moratorium regulatory system and an assessment of the operation of the regime is timely. The results of this assessment suggest that the EU's approval system is only partially based in science and thus, the potential for political interference remains. Hence, the new EU regulatory regime for GM products makes investments in trade related activities pertaining to GM products very risky.

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012037

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

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012038

This study examines the influence of interest groups on a state's willingness to pursue their most favourable decision during a WTO dispute. States are committed to their WTO agreements, but they also have to act as a watchdog for their domestic industries in states that may not hold WTO agreements in high esteem. Interest group influence on the state has been examined through case studies, but never at the systemic level. I hypothesize that states being pressured by many interest groups are more likely to pursue a dispute into the higher levels of dispute resolution. I test this using data from the WTO as well as interests groups from around the world. I find that complainant states are more likely to be pressured by their interest groups to pursue a favourable outcome rather than settle or accept an earlier decision.

I will go anywhere in the world to open new markets for American products. And I will not stand by when our competitors don't play by the rules. We've brought trade cases against China at nearly twice the rate as the last administration, and it's made a difference…. It's not fair when foreign manufacturers have a leg up on ours only because they're heavily subsidized. - Barack Obama, January 24, 2012

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012039

China's utilization of the WTO dispute settlement system since its accession shows an overall growth with distinctions at different stages. The majority of the existing commentaries generally argue that China seemed to take a reluctant and passive attitude towards WTO disputes in the first five years of its WTO membership and then changed to an active and aggressive one in the last five years. This paper reflects on why China has taken a more active approach and argues that China's recent activism is not only a purely voluntary action as a result of the rising legalism in China but also a reluctant choice or response. As China lacks other legally available and practical means and before turning directly to unilateralism, it chose the WTO venue as the last resort. This was largely due to the insurmountable difficulty that it had encountered in its past bilateral efforts to amicably resolve critical trade issues and because of the grave political pressure on China's imbalanced position under the WTO dispute settlement system. This paper also argues that China still seems far from the moment when it can be satisfied with its litigation performance on the international level and that China needs to continuously enhance its legal competence in a comprehensive way to better utilize the WTO dispute settlement system.

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012040

With the benefit of hindsight, financial markets and institutions proved to be much more fragile to shocks than regulators and supervisors expected. Financial innovation was accused of having played a decisive role in the recent financial turmoil. In the wake of the crisis and after the adoption of generous rescue packages and liquidity facilities by several governments, a coordinated effort is being made to revise prudential standards, both at the micro- and the macro-prudential level. In these efforts, governments appear to follow the rules promulgated within the Basel Committee on Banking Supervision (BCBS). After an examination of the interaction between prudential regulation and financial innovation, the paper critically reviews the new prudential standards adopted within the BCBS known as 'Basel III', in particular those relating to regulatory capital and liquidity. One of the essential lessons of the crisis is that such requirements can no longer be limited to banks, in view of the contribution of the shadow banking system to the crisis. Furthermore, relevant national initiatives in the EU and the US are discussed and potential conflicts with the Basel III framework are pinpointed. In addition, the relevance of the prudential carve-out within the General Agreement on Trade in Services (GATS) is examined. As rule creation outside the GATS grows, rule outsourcing in the area of financial services becomes well-established, thereby increasingly pointing to the limited role of the GATS in this area.

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012041

Restrictive preferential rules of origin cause producers in RTAs to source intermediate materials from RTA partners instead of non-parties in order to meet the rules of origin requirements. For RTAs concluded under Article XXIV, restrictive preferential rules of origin open doors to selective tariff liberalization in violation of GATT Article XXIV. For RTAs concluded pursuant to the Enabling Clause, restrictive preferential rules of origin may result in 'undue difficulties' to non-parties in violation of the Enabling Clause. In order to address the inconsistencies with the WTO law, restrictive preferential rules of origin should converge to the WTO harmonized non-preferential rules of origin (NPROO), which would be deemed non-protectionist. However, in view of the slow progress of harmonizing NPROO in the WTO, we propose an alternative approach based on the evolutionary development of preferential rules of origin in the ASEAN's RTAs. As a second-best solution, we propose that all RTA rules of origin adopt a general rule applicable to all non-wholly obtained products: the 40% value-added rule or a change in tariff heading (CTH). In conjunction with the general rule, a limited number of product-specific rules of origin that are coequal to the general rule should be permitted so as to provide some room for flexibility for RTAs to accommodate divergent existing preferential rules of origin. The proposed general rule would further enhance the conformity of RTAs with the WTO system by harmonizing preferential rules of origin across RTAs and across different product lines.

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012042

This article examines the relevance of GATS in light of the rise of trade in ICT-enabled services and, in particular, the rapid expansion of the offshore industry. It provides considerable evidence about the difficulties to adjust trade rules and specific commitments negotiated in the late 1980s and early 1990s to a significantly different commercial environment led by technological innovations and the emergence of global supply chains. It reviews various alternatives that could be considered for upgrading rules on trade in services and argues that inaction could result in GATS early obsolescence.

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012043

This article attempts to analyse and investigate the implications of the approach to the applicability of Article XX GATT adopted in the recent China - Raw Materials. Using the decision on the non-availability of Article XX defences for violations of China's WTO-plus commitments on export duties as a backdrop, it scrutinizes the more general, 'systemic' approach to the applicability of Article XX exceptions developed by the WTO dispute settlement bodies, and sheds light on the implications of such approach with respect to the relationship between GATT 1994 and WTO obligations arising from different instruments of the WTO Agreement, such as new members' accession protocols. It also suggests that an exception to this general approach could be envisaged when the fundamental environmental goals protected under Article XX b) and g) are at stake.

Copyright © 2012 Kluwer Law International
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ISSN: 1011-6702
ID: TRAD2012044

Copyright © 2012 Kluwer Law International
All rights reserved

ISSN: 1011-6702
ID: TRAD2012045

Copyright © 2012 Kluwer Law International
All rights reserved

ISSN: 1011-6702
ID: TRAD2012046