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The World Trade Organization 20 Years On: Global Governance by Judiciary
Abstract
This article presents a narrative about the building of an effective, legitimate judicial system in the World Trade Organization (WTO) through a period of intense diplomatic and political divisiveness and prevailing perception of impasse and malaise in the Organization. At the centre of the narrative is the Appellate Body of the WTO, a standing body of seven jurists charged with deciding appeals of law. The Appellate Body, as will be elaborated, responded to the political conflict and paralysis at the WTO by distancing itself from the Organization and making a number of crucial jurisprudential moves that led to its transformation into an independent court, which has often decided controversial questions in balanced or deferential ways that display, at best, neutrality to the neo-liberal 'deep integration' trade agenda reflected in the Uruguay Round of multilateral trade negotiations and many of its results, such as the WTO Agreements on Intellectual Property and on Technical Barriers to Trade, for example. In the early years, the Appellate Body's deviation from some of the basic tenets of the trade insiders at the WTO led to an open conflict with the trade policy elite, including the delegates of the Members who sit as diplomatic representatives of the membership in Geneva. The end result, however, was the acceptance of the Appellate Body's authority. The same consensus practice of political and diplomatic decision making at the WTO that made negotiating breakthroughs elusive also made it essentially impossible for the Members to threaten or pressure the Appellate Body effectively since, ultimately, overruling any of its decisions, either through the amendment of a WTO treaty or through an 'authoritative interpretation', could not be done absent a consensus of the Members. © The Author, 2016. Published by Oxford University Press on behalf of EJIL Ltd.
... W GATT negocjowano rozstrzyganie sporów (Kostecki, Hoekman, 2009). Stworzony po Rundzie Urugwajskiej system rozstrzygania sporów WTO uzyskał legitymizację najważniejszych potęg handlowych (USA, UE, Kanada) i miał rangę praktycznie quasi-sądu, rozwiązującego konflikty handlowe między państwami w zakresie egzekwowania norm porozumień WTO (Petersmann, 2006, Howse, 2016, Bosche 2022. System rozstrzygania sporów pozwalał na obronę interesów krajów rozwijających się, które w wielostronnych negocjacjach handlowych Rundy Tokijskiej (1973)(1974)(1975)(1976)(1977)(1978)(1979) postulowały o zaostrzenie przestrzegania przez kraje rozwinięte regulacji art. ...
... Członkami Organu Apelacyjnego zostało siedmiu sędziów, wybitnych ekspertów w dziedzinie prawa. Niezależność sędziów Organu Apelacyjnego polegała na przyjęciu rozwiązania nieprzyjmowania instrukcji od państw WTO w zakresie rozwiązywanego konfliktu handlowego (Howse, 2016). Najważniejsze podmioty w handlu międzynarodowym, w szczególności Stany Zjednoczone, Unia Europejska i Japonia, miały swojego przedstawiciela w Organie Apelacyjnym. ...
... Kwestia kontroli politycznej nad działalnością Organu Apelacyjnego pojawiała się od momentu utworzenia WTO. Działalność Organu Apelacyjnego odniosła pewien sukces, ponieważ jako organ złożony z siedmiu sędziów unikał naciskom przeciwników idei wolnohandlowych, zwolenników protekcjonizmu (Howse, 2016). ...
CEL NAUKOWY: Celem artykułu jest zbadanie przyczyn, efektywności i możliwości wyjścia z kryzysu systemu rozstrzygania sporów WTO (World Trade Organization), w tym Organu Apelacyjnego w warunkach słabnącej legitymizacji dla funkcjonowania i akceptacji procedur Światowej Organizacji Handlu. PROBLEM I METODY BADAWCZE: W artykule zastosowano metodę jakościową i ilościową do analizy kontrowersji związanych z funkcjonowaniem Organu Apelacyjnego WTO. Do analizy efektywności działania Organu Apelacyjnego w zakresie procedur rozstrzygania sporów między państwami w handlu międzynarodowym zastosowano teorię organizacji międzynarodowej oraz teorię wyboru publicznego. PROCES WYWODU: Na podstawie teorii organizacji międzynarodowej i teorii wyboru publicznego w artykule omówiono problematykę legitymizacji społecznej dla tworzenia i egzekwowania norm WTO, pozwalających na proces liberalizacji handlu międzynarodowego. Następnie przedstawiono efektywność systemu rozstrzygania sporów, w tym Organu Apelacyjnego, która umożliwiła działanie WTO w ograniczeniu działań protekcjonistycznych państw. WYNIKI ANALIZY NAUKOWEJ: Analiza naukowa potwierdziła efektywność systemu rozstrzygania sporów WTO odnośnie do liberalizacji handlu międzynarodowego. Słabnąca legitymizacja społeczna i normatywna systemu rozstrzygania sporów, w tym Organu Apelacyjnego WTO, w wyniku ograniczenia poparcia dla idei wolnego handlu w wielu państwach członkowskich WTO, w szczególności w Stanach Zjednoczonych, uniemożliwiła reformowanie reguł WTO. WNIOSKI, INNOWACJE I REKOMENDACJE: W dalszej analizie należy podjąć badania naukowe dotyczące zreformowania systemu rozstrzygania sporów w rozwiązaniach regionalnych bez udziału Stanów Zjednoczonych. Niezbędne jest również zbadanie wzrostu poziomu protekcjonizmu w handlu międzynarodowym w efekcie zablokowania działalności Organu Apelacyjnego.
... As these corporations expand across borders, they must navigate complex regulatory frameworks that govern global commerce. International trade laws, such as those established by the World Trade Organization (WTO), regional trade agreements, and national regulations, play a critical role in shaping business practices (Howse, 2016). These laws significantly influence how MNCs formulate and implement their strategies, particularly in areas like market entry, supply chain management, and corporate governance (Rugman & Verbeke, Global Social Science and Humanities Journal 2 2004). ...
This research explores the impact of international trade laws on the strategic management practices of multinational corporations (MNCs). With increasing globalization and trade liberalization, MNCs face significant challenges and opportunities arising from complex international legal frameworks. This paper examines the role of international trade laws in shaping corporate strategies, particularly in areas such as market entry, supply chain management, legal compliance, and corporate social responsibility (CSR). Through a series of case studies, the research highlights how MNCs navigate regulatory constraints and leverage legal structures to gain competitive advantages. The findings suggest that trade laws play a pivotal role in defining the scope of MNC strategies, while also introducing new risks and challenges that require adaptive management approaches. The paper concludes by offering recommendations for MNCs to effectively align their strategic objectives with evolving trade regulations.
... Protectionism is an economic policy that is contrary to free trade, where countries impose tariffs and regulations to protect their domestic industries from global competition. Protectionist policies often arise as a response to injustice in international trade, especially when countries feel that their domestic industries are threatened by cheaper imports (Howse, 2016). However, protectionist policies have their own risks. ...
The International Trade Organization (ITO) plays a crucial role in enhancing economic cooperation and strengthening free trade between countries. Organizations such as the World Trade Organization (WTO), the International Monetary Fund (IMF), and the World Bank act as facilitators in creating fair and transparent trade policies. The ITO plays a role in reducing trade barriers, such as tariffs and quotas, and resolving trade disputes that can hamper global economic growth. In addition, this organization also helps developing countries increase their trade capacity through technical and financial assistance. With the role of the ITO, countries can more easily access international markets, increase product competitiveness, and strengthen global economic stability. Therefore, cooperation in the ITO is the main key to realizing sustainable and equitable free trade for all parties.
... Global trade uncertainty, brought on by the constant danger of trade disputes (Bown and Reynolds 2015;Ossa 2014), geopolitical tensions (Hoekman, Mavroidis, and Nelson 2023), shifting tariffs (Jakubik, Keck, and Piermartini 2022), and unanticipated disruptions (Michail and Melas 2020) hampers the stability and predictability of global markets (Baley et al. 2020;Tam 2018). This ambiguity has far-reaching effects on economic activity, including governments (Bagwell and Staiger 2011;Halff, Younes, and Boersma 2019;Howse 2016;McKenzie 1954), labour conditions (Langille 2020), as well as consumers and corporate profits (Makridakis, Hogarth, and Gaba 2009). ...
We examine how trade and policy uncertainty affect shipping freight rates, using a Bayesian Vector Autoregression (BVAR) model. Trade uncertainty has a strong effect on shipping costs, even though the effects become insignificant within a year. On the other hand, policy uncertainty has a slightly smaller initial effect but tends to have longer-lasting effects on shipping costs. Trade uncertainty tends to benefit European stocks, perhaps as investors may believe that consumers will shift to local companies, with the impact on US stocks also being (mildly) positive, despite the (lagged) deterioration in economic activity. Trade uncertainty tends to have a longer-lasting impact on GDP than policy uncertainty, given then known merits of comparative advantage, while the effect of policy uncertainty is higher in the European markets compared to the US ones.
... By reducing trade barriers, including tariffs and quotas, the WTO enhances market access and promotes the exchange of goods and services across nations. This liberalization allows countries to concentrate on production based on their comparative advantages, leading to more efficient resource allocation and increased productivity (Howse, 2016). ...
... According to Article XX of the General Agreement on Tariffs and Trade (GATT) 1947 on General Exceptions, members are enabled to take all necessary measures "to protect human, animal or plant life or health, " or "relating to the conservation of exhaustible natural resources" (WTO, 2023b). However, trade-related measures that protect the environment must comply with WTO guiding principles, including "national treatment" and the "most-favoured nation" 4 and should not restrict trade in a way that is arbitrary and results in unjustifiable discrimination between countries (Howse, 2016). In this regard, many WTO disputes have provided guidance on what could be considered as non-protectionist (WTO, 2022). ...
The relationship between trade and the environment is intricate. Trade can improve the allocation of production among countries, with an efficiency-enhancing role in natural resources use. Likewise, open markets can improve access to new technologies that make domestic production processes more cost-efficient and reduce the use of inputs as well as other environmentally harmful substances. However, economic growth due to trade expansion can have a direct impact on the environment by increasing pollution and contributing to natural resource degradation. Trade liberalization may also lead to specialization in pollution-intensive activities in some countries, especially when environmental policies are not stringent. In recent years, there has been a significant shift in how trade policies are being approached, with a renewed emphasis on balancing sustainable development and market liberalization to ensure that trade policies and environmental protection are coherent and mutually supportive. Since the establishment of the World Trade Organization (WTO) in 1995, regional trade agreements (RTAs) have become a common option to further liberalize trade, growing significantly in number. RTAs have also expanded rapidly in terms of regulatory coverage and have evolved to directly referencing sustainable development and including provisions linking the environment to the agriculture, fisheries and forestry sectors. Based on novel dataset, this research looks into the trends in inclusion of environmental provisions related to the agriculture, fisheries and forestry sectors (“Ag-ERPs”) in RTAs and provides policy recommendations.
... It is well known that global trade uncertainty, brought on by the constant danger of trade disputes (Bown and Reynolds, 2015;Ossa, 2014), geopolitical tensions (Hoekman et al., 2023), shifting tariffs (Jakubik et al., 2022), and unanticipated disruptions (Michail and Melas, 2020) hampers the stability and predictability of global markets (Baley et al., 2020;Tam, 2018). This ambiguity has far-reaching effects on economic activity, including governments (Bagwell and Staiger, 2011;Howse, 2016;McKenzie, 1954), labour conditions (Langille, 2020), and consumers in addition to affecting corporations' bottom lines (Makridakis et al., 2009). ...
We examine how trade and policy uncertainty affect shipping freight rates, using a Bayesian Vector Autoregression. While trade uncertainty has a strong effect on dry bulk freight costs, this is short lasting, as the effects become insignificant within a year. On the other hand, policy uncertainty, while having a slightly smaller initial effect, tends to have longer-lasting effects. Trade uncertainty tends to benefit European stocks, perhaps as investors may believe that producers will favour local companies over foreign ones. The impact on US stocks tends to be mildly positive, despite the (lagged) deterioration in economic activity. Interestingly, trade uncertainty tends to have a longer-lasting impact on GDP than policy uncertainty, while the effect of policy uncertainty is higher in the European markets compared to the US ones.
... The WTO Dispute Settlement Body, for example, has been criticized for interpreting WTO agreements in ways that prioritize free trade principles over the freedom of states to regulate for the public interest-although the Appellate Body has arguably taken a somewhat balanced approach to that issue (Howse, 2016). Labor and environmental protections remain excluded from WTO agreements and negotiations. ...
In the last 75 years of international economic cooperation, we have witnessed tremendous changes. The global trade and investment regime is under pressure and undergoing a significant transformation. Supply chains are being restructured, new trade blocks are forming based on strategic and political considerations, support for trade among citizens is weak and inconsistent, and populist opposition to the global economic and political order is ascendant. In this time of uncertainty about the future of the world order, the articles for this thematic issue address how and if the global trade and investment regime can be re-embedded into society.
... The AB continually affirmed that states have the "right to regulate"-a right not protected in the text of any covered agreement. 163 As we have argued elsewhere, this makes clear that "the WTO is not a constitutional regime or a normative authority at the bar of which States must justify themselves before regulating. Regulations are presumed to be legitimate unless they have specific features that engage the precise treaty obligations of the WTO system. ...
The World Trade Organization is at an important institutional crossroads, buffeted by critique and with its once-heralded dispute system in doubt. Despite some achievements at the 2022 MC12 Ministerial Conference, the WTO appears in crisis, without a strong institutional mandate. In this Article, we offer a vision for its future, rooted in a particular interpretation of its past. The WTO's legal architecture is characterized by a resilient pluralism, which seeks to preserve diversity of governance models and regulatory approaches, both economic and political, in the domestic orders of member states. Despite strong pressures to impose a neoliberal vision of the state-market relationship on states, this pluralism has persevered; it offers a response to the WTO's critics and a mandate for the WTO's future.
... Since its formation, the WTO Dispute Settlement Mechanism (DSM) has attracted wide attention from scholars in political science, economics and law (Davis, 2012;Howse, 2016;Kuenzel, 2017;Wood and Wu, 2020). Within these efforts has been the role that developing countries play in the process. ...
The WTO dispute settlement mechanism (DSM) is now facing a crisis of paralysis. Given such a challenging environment, this study examines factors affecting the participation of the WTO DSM by using bilateral data of WTO members from 1995 to 2017. Moreover, we provide a comparative analysis of the factors affecting the filing of cases at the WTO DSM between developed and developing countries across this period. By conducting the rare-event logistic regression method, we find that the export intensity, retaliation capability, economic power and economic threat are the main factors determining the initiation of trade disputes by WTO members. Moreover, the results from seemingly unrelated regressions suggest that economic power, proxied by the complainant country’s gross national income, is not a vital issue of importance that developed countries need to consider when deciding to initiate trade disputes; however, in contrast, developing countries still see it as an important factor affecting the use of DSMs, especially when the target countries are developed countries. Nonetheless, it is worth noting that in the later stage of the WTO, the impact of economic power no longer has any differential influence. On balance, these results reflect the efforts of the WTO to build a fair and rule-based DSM while also highlighting the urgent practical significance of maintaining a solid and effective mechanism for handling international trade disputes.
... To address data protection and cybersecurity concerns, governments can also adopt WTO international trade rules that provide key elements of a system of digital trade governance (Meltzer 2019). Though not without limitations, such integrated global systems provide rules that support cross-border data flows via the internet, while allowing governments to retain the regulatory flexibility to limit data flows where deemed necessary (Howse 2016;Meltzer 2019). A recent example of a relatively effective data protection regime is the EU's General Data Protection Regulation, which requires significant data protection safeguards from online businesses (Li et al. 2019). ...
The advancement of digitalization is gradually transforming the existing structure of the global economy. According to the McKinsey Global Institute, almost all cross-border transactions had a digital component in 2016. This is also reflected by the growing literature on digitalization and E-commerce. Yet, studies specifically focusing on E-commerce policy are scarce compared with other areas in this domain. By going beyond academic articles and including policy documents in our analysis, this study takes stock of the issues as well as the policy recommendations identified in these publications. Our analysis reveals that to promote an inclusive E-commerce participation, it is imperative to design policies that improve countries’ formal institutions, facilitate the inclusion of less-developed countries in the E-commerce space, and enhance E-commerce adoption by small- and medium-sized enterprises. We highlight the significance of collaboration between and solidarity among governments and other stakeholders.
... The Appellate Body historically played a vital role in preserving policy space for nontrade public policy goals such as environmental protection. 86 Its active role has helped fill the gap left by the deadlock in multilateral trade negotiations. However, such activism has subjected the Appellate Body to considerable criticism from the US that eventually brought about its demise in 2019. ...
The last decade has witnessed the emergence and rise of trade disputes over renewable energy support measures. By pitting trade against the environment, these disputes ignited a considerable debate over the adequacy of the green policy space available under WTO law. This article examines whether and to what extent the first ten years of litigation settled the key issues in this debate by undertaking a systematic analysis of the developments in the case law and in the renewable energy policy landscape. The analysis reveals that the case law has raised more questions than answers and much uncertainty remains as to the scope of the policy space available for the subsidization of renewables. It also highlights how these disputes steered the debate away from the most contentious issue of subsidy regulation to the slam-dunk issue of non-discrimination. In doing so, they helped conceal rather than resolve the green policy space deficit in multilateral renewable energy subsidy governance.
... For example, Howse indicates that the WTO's dispute settlement mechanism (DSM) helps halt the unilateralism of the US. 45 It has also been found that a desire to reduce information asymmetry could lead to more frequent use of {D}. 46 Nevertheless, {D} dampens individual control of states. ...
This article analyses the institutional designs of online personal data protection, location of computing facilities and cross-border data flows (hereinafter referred to as ‘data-related issues’) in the Regional Comprehensive Economic Partnership (RCEP) and the free trade agreements (FTAs) concluded between/among the RCEP Parties (hereinafter referred to as ‘inner-FTAs’). Varied institutional designs of the RCEP’s inner-FTAs suggest that uneven liberalization of data flows and regulatory fragmentation are prominent among the parties, but the inner-FTAs are still rooted in the conventional rationale of embedded liberalization. Comparatively, the RCEP’s institutional design concerning data-related issues diverts from the conventional rationale by formally harmonizing its heterogeneous inner-FTAs: the RCEP partially assimilates its inner-FTAs while making some innovations referring to some old elements of the multilateral trading system. In substance, the RCEP allows the Parties to have more autonomy to cultivate consensus and re-adjust the regional legal order as it reasserts the dominance of domestic regulation. The RCEP may head for two directions: it may either complement the multilateral trading system or grow into a novel regional legal order. The destination largely depends on whether the Parties can reach consensus. During the transitional period, soft law and non-state actors will play important roles in bridging the regulatory divide under the shadow of domestic regulation.
Regional Comprehensive Economic Partnership (RCEP), free trade agreements, institution, institutional design, online personal data protection, cross-border data flows, data localization, soft law, non-state actor, new legal order
... Second, the political dispute settlement procedure under GATT has been replaced with the permanent Dispute Settlement Mechanism (DSM) of the WTO where the quasi-judicial independent Appellate Body takes final decisions and makes conclusive determinations on the interpretation and application of WTO law (see Zangl 2008). This judicialization has firmly locked in the main tenets of the liberal trade regime and created a supranational body whose expansive jurisprudence arguably created new obligations on its own (Howse 2016;Condon 2018). 5 A similar development is discernible beyond the WTO in the wider free trade regime that was reinforced by the global spread of bilateral, regional, and mega-regional free trade, preferential trade, and investment agreements (Looney 2018). ...
The Liberal International Order (LIO) is under pressure from various angles. To account for this phenomenon, a recent trend is to focus on endogenous sources of contestation-institutional properties of the order that create negative feedback effects. In this article, we seize on and extend an endogenous explanation centring on the LIO's political structure and institutional design. While existing research stipulates a connection between the rising authority of liberal international organizations (IOs) and their increasing politicization, we still lack a clear understanding of the reasons behind the growing rejection of the order at the level of mass publics. We argue that the LIO's institutional setup contains a widening 'democracy gap' denoting a disconnect between the participatory legitimation requirements for the exercise of political authority and the technocratic legitimation rationale characterizing IOs. By creating a justification deficit, the democracy gap incites growing political dissatisfaction and, by implying a responsiveness deficit, it turns policy contestation into outright polity contestation. We probe the plausibility of our theoretical argument in case studies of the EU and the international regimes on trade and human rights, and subsequently discuss the analytical and normative implications of our argument.
This article examines the rationales for addressing sustainability and social inclusion in trade policy and the tradeoffs among imperfect institutional choices in doing so through ‘flanking policies’. It examines three types of negative spillovers or externalities implicated by trade: material, moral, and social/political. Section 1 defines terms and sets forth the argument. Section 2 typologizes the three categories of negative externalities and then highlights the challenges posed for flanking measures given the reciprocal nature of externalities. It respectively addresses environmental harms and labor and social inclusion concerns. Section 3 assesses different institutional alternatives for addressing negative externalities, dividing them between domestic measures targeted at protecting domestic concerns and international ones, such as package treaties. Section 4 shows how the concept of a flanking measure can be flipped, so that environmental sustainability and social inclusion become the core and trade measures become the flanking policies. Section 5 concludes.
This research examines the European Union Deforestation Regulation (EUDR) as a pivotal regulatory response to forest degradation. .
The research situates EUDR within the broader international forest governance framework, emphasizing its economic, legal, and social impacts. By employing law and economics principles, the analysis explores compliance costs, market dynamics, and incentives for sustainable practices. A critical question is whether EUDR balances environmental priorities with economic realities, particularly for developing countries reliant on agriculture and forestry, while adhering to World Trade Organization (WTO) norms. Comparative analyses with global initiatives and regulations, such as the UK Environment Act and U.S. Forest Act, further contextualize its scope and implications.
The study integrates the rights of nature concept, recognizing forests as entities with intrinsic rights essential to global ecological health.
Ultimately, the study shows that EUDR can not serve as a template for global forest governance, advocating for a more holistic approach that integrates ecological, economic, and community-based perspectives. The findings emphasize the necessity of reconciling international trade norms with robust environmental protections to achieve sustainable development goals.
NGOs participate in the International Court and Tribunal proceedings as an Amicus Curiae. Their participation depends on the provisions of the statute or rule of procedures of the court and tribunal concerned, and it also depends on court's discretionary powers. In addition, NGOs have played significant role in the establishment of the International Criminal Court and World Bank Inspection Panel.
This paper analyses frameworks for the design of the rules for international trading, assuming that it is possible to have some rule of law. In the Arrow–Debreu benchmark, where there is no economic power and political power is seemingly irrelevant, there is no need for trade agreements—free trade is the optimal policy for each country. But under even minimal deviations from that benchmark, trade agreements matter. We focus on environments in which there are market failures, technology is endogenous, and there is political power. Power dynamics play, for instance, a critical role in the design, implementation, and enforcement of agreements, with the latter being a critical difference between international agreements and domestic contracts and a key determinant of the feasibility and consequences of agreements. With endogenous technology, trade rules proscribing industrial policies may lead to lower growth and greater cross-country inequalities. Finally, we develop a normative framework which may be useful in the design and implementation of trade rules.
This book uses environmental disputes as a focus to develop a novel comparative analysis of the functions of international adjudication. Paine focuses on three challenges confronting international tribunals: managing change in applicable legal norms or relevant facts, determining the appropriate standard and method of review when scrutinising State conduct for compliance with international obligations, and contributing to wider processes of dispute settlement. The book compares how tribunals manage these challenges across four key sites of international adjudication: adjudication in the World Trade Organization and under the United Nations Convention on the Law of the Sea, International Court of Justice litigation, and investment treaty arbitration. It shows that while international tribunals perform several key functions in the contemporary international legal order, they are subject to significant constraints. Paine makes a genuine addition to literature on the role of international adjudication in international law which will benefit academics, practitioners, and policymakers.
The World Trade Organization (hereinafter referred to as “the WTO”), which was established by the Marrakesh Agreement Establishing the World Trade Organization (hereinafter referred to as the “WTO Agreement”) and became operational on 1 January 1995, proclaims the emergence of “an integrated, more viable and durable multilateral trading system”.
Contestations have emerged over the nearly three decades of the World Trade Organization (WTO) regarding the narratives on the rule of law (ROL) as a central tenet of the Multilateral Trading System. One of such contestation is whether the idea of ROL was ever internalized in the WTO at its formation or has been exaggerated. This article critically explores this narrative and locates it in the context of the events of the past two decades in the WTO. It challenges the notion of ROL in the world trading system. It argues that although significant progress was made in mainstreaming ROL in the Uruguay Round project, it would be an exaggeration to claim that ROL was embedded in the trading system from its inception. The article concludes that sceptics of the ROL project in the WTO have arguably been vindicated by how things have unfolded in the past two decades.
Written by one of the world's leading international lawyers, this is a landmark publication in the teaching of international law. International law can be defined as 'the rules governing the legal relationship between nations and states'. However, with political, diplomatic and socio-economic factors shaping the law and its application, international law is much more complex. This refreshingly clear, concise textbook encourages students to view international law as a dynamic system of organising the world. Bringing international law back to its first principles and breathing new life and energy into the subject, the book is organised around four questions: Where does it come from? To whom does it apply? How does it resolve conflict? What does it say? This fourth edition includes references to new case-law and literature, and features (brief) discussions on recent topics of general interest, including the Ukraine invasion, global health law and energy law.
The modern professional world of international adjudication bears little trace of the ‘invisible college’ theorized by Oscar Schachter 50 years go. Instead, it has become a social field marked by a fierce competition among actors possessing unequal skills and influence. Moving from these premises, this article unravels the socio-professional dynamics of the community of legal experts – judges, arbitrators, government agents, private counsel, court bureaucrats, specialized academics, etc. – dealing with the judicial settlement of international disputes on a daily basis. On the one hand, the community has developed a specific set of social structures, practices, and dispositions that distinguish it from the rest of the international legal profession and insulate its activities from outside interference. On the other, it is the site of an endless struggle among its participants, who deploy various forms of capital to consolidate their positions relative to one another. Having outlined the twofold structure of the community – externally autonomous and internally conflictive – the article reflects on how co-operation and competition affect the everyday unfolding of international judicial proceedings and the production of legal outcomes at the international level.
This Article contributes to the discussion about the development of international trade regulation of state interventionism by situating the tensions that exist about the future design of subsidies and state enterprises treaty regulation in the broader context of current systemic challenges to the multilateral trading system. While recent studies have explored the issues of subsidies and state-owned enterprises (SOEs) as one of the most significant in impact among the contemporary challenges to the WTO, there is certainly scope to discuss further such a problem from the broader point of view of the crisis of the multilateral trading system, its systemic challenges and the concomitant increasing politicization of international trade relations. To this end, this Article analyzes the interactions between the lasting decline of the WTO, growing political interferences with international trade flows and the prospects of reforming multilateral trade rules to address its systemic challenges and manage/mitigate newly central problems of the 21 st century such as the Covid-19 Pandemic, climate change and the greening of economic production and international trade. The Article argues that existing WTO rules are not adequate to address these challenges and problems. It concludes that, like in the GATT era, it is only the spirit of pragmatism that may provide chances to find alternatives to growing frustration with negotiating inaction and, hence, to reform the system. However, the question remains whether it is possible to find an approach to imagine, remodel and craft multilateral rules that are sensitive to different economic, political, and social choices and able to rebalance the position of all members, large and small, rich and poor.
International trade law has long been the site of a battle over who or what the state can represent. Today, that battle is taking a new form. While for decades the WTO was considered a centerpiece of the international economic order, the policy landscape is now awash with claims that the US should abandon WTO disciplines, critiques of the WTO as the vehicle for a coherent neoliberalism, and concerns about the implications of trade law for domestic industry, democratic participation, climate action, and national security. While I am a long-standing critic of trade law’s excesses, I don’t see that sudden shift as a cause for celebration. In order to understand why, I argue that it is necessary to pay careful attention to the different forms the battle for the state at the WTO has taken. This article explores the conditions and stakes of three key moments in that battle – the negotiation of the GATT and the era of decolonization, the end of the Cold War and the creation of the WTO, and the recent transformations caused by the decline of US power, the rise of China, and the systemic shock of climate change. I conclude that we cannot automatically apply critiques developed in earlier eras to the current situation.
Although many academic commentators have long argued that the World Trade Organization (WTO)-driven liberal rules of international agricultural trade regulation have a negative effect on the enjoyment of the human right to food, especially in developing countries, there is still a dearth of scholarship offering proposals to ameliorate the situation. This article fills this gap by presenting a discussion of the possible avenues for accommodating the food security-related human rights obligations of states in the extant legal framework for international agricultural trade regulation. It argues that such a development, among other measures, is a plausible response to the problem of food insecurity endemic in developing countries and which manifests in international agricultural trade regulation. The article contends that for the WTO to effectively address the human right to food concerns of developing countries, the free trade regulations, as practised in international agricultural trade, must be complemented with the human right to food as a supreme norm sine qua non lege. It is concluded that this eminently desirable outcome can be achieved through the assimilation of the human right to food into the ‘public morals clause’ of Article XX of the GATT, reading the human right to food into the Agreement on Agriculture, adopting some WTO Ministerial Conference proposals, re-configuring some WTO dispute settlement practices, and lastly, by adopting the proposal of the UN Special Rapporteur on the human right to food.
The World Trade Organization (WTO) recently celebrated twenty years of existence. The general wisdom is that its dispute settlement institutions work well and its negotiation machinery goes through a phase of prolonged crises. Assessing the World Trade Organization overcomes this myopic view and takes stock of the WTO's achievements whilst going beyond existing disciplinary narratives. With chapters written by scholars who have closely observed the development of the WTO in recent years, this book presents the state of the art in thinking about WTO performance. It also considers important issues such as the origins of the multilateral system, the accession process and the WTO's interaction with other international organisations. The contributions shed new light on untold stories, critically review and present existing scholarship, and sketch new research avenues for a future generation of trade scholars. This book will appeal to a wide audience that aims to better understand the drivers and obstacles of WTO performance.
Since China’s accession to the World Trade Organization (WTO), the WTO dispute settlement system (DSS) has resolved an impressive number of US–China trade disputes. Over the past few years, however, as tensions between the two have escalated over several trade issues, the WTO has been pushed toward irrelevance since the Trump administration. Alleging that the WTO is “a disaster” and its adjudication is very unfair to the US, former President Trump made no effort to hide his criticism of the WTO and its DSS in particular. Is Trump right about the WTO DSS? Based on an examination of US–China WTO disputes and the WTO adjudicators’ highly contentious interpretations of the concept of “public body” under the Agreement on Subsidies and Countervailing Measures (the SCM Agreement) as an example, this article shows that the WTO DSS is not particularly unfair to the US. While the WTO adjudicators sometimes did not fully follow the positions advocated by the US, they have adhered to generally accepted rules of treaty interpretation and exercised great caution to remain balanced and flexible in reaching their conclusions, especially on ambiguous issues. Though not perfect, the WTO DSS works as it is intended to. Engaging in the reform of the WTO and its DSS, instead of abandoning or marginalizing the WTO, should be a wiser and more practical choice for the Biden administration.
In this chapter the author analyzes the scope of the two broadest available screening grounds for FDI screening mechanisms in the EU: ‘security or public order’ in accordance with the Screening Regulation and ‘public policy or public security’ pursuant to Art 65(1)(b) of the Treaty on the Functioning of the EU. In particular, he argues that the screening ground ‘security or public order’ of the Screening Regulation is to be interpreted in accordance with the grounds of exception in Art XIVbis(1)(b) (essential security interests) and Art XIV(a) (public order) of the WTO’s General Agreement on Trade in Services. For his analysis, he, inter alia, develops a test to define the highly complex and dynamic concept of essential security interests. Based on the definitions of the available screening grounds, the author concludes that both grounds, ‘security or public order’ and ‘public policy or public security’, have significant limitations for the EU and Member States to meet their concerns vis-à-vis foreign investors.
Le regain d'intérêt pour la politique industrielle à la suite de la crise financière de 2009, couplé à la reconnaissance croissante de la nécessité d'orienter les économies vers des voies de développement plus durables a remanié la lumière sur la relation entre les règles commerciales multilatérales et l'utilisation de subventions pour pallier des externalités environnementales négatives. Le large soutien gouvernemental fourni pour « reconstruire en mieux » après le COVID-19 renforce l'importance de la discussion. La relation entre les règles de l'OMC et les mesures commerciales adoptées aux fins d’objectifs de développement durable a considérablement évolué au fil des ans, les différents régimes règlementaires internationaux ayant connu des évolutions substantielles fin conséquence, le concept de développement durable et de protection de l’environnement a été intégré parmi les principaux objectifs du système commercial multilatéral, offrant une large marge de manœuvre pour l’adoption de mesures réglementaires restrictives pour le commerce. Cependant, l’application des disciplines relatives aux subventions aux programmes de soutien adoptés à des fins environnementaux n'a commencé que très récemment à être explorée dans la pratique, avec des implications importantes, quoique complexes. Avec le besoin d'une transformation économique profonde pour faire face au changement climatique, à la perte de biodiversité et à d'autres objectifs de développement durable, l'identification et la résolution des lacunes théoriques et juridiques de la réglementation commerciale applicable aux subventions devient une question urgente pour éviter des tensions contreproductives.
The relationship between tradeTrade and environmental protection is one that has provoked much by way of debate. While there is recognition within WTOWorld Trade Organisation (WTO) legal texts that trade liberalisation can have an impact upon environmental protection, much of the more contentious issues pertaining to the relationship between trade and the environment have been left to the WTOWorld Trade Organisation (WTO) dispute settlement system to pronounce on. This chapter assesses the strengths and weaknesses of the WTO dispute settlement system as a forum for resolving disputes involving environmental matters. This chapter argues that while the jurisprudence of the WTOWorld Trade Organisation (WTO) dispute settlement system has been sensitive to the idea that countries should have sufficient policy space to enact measures for environmental purposes, significant question marks remain over a number of questions such as how non-WTO law should be treated within the WTO dispute settlement system. With an increasing range of environmental threats facing the world, not least the spectre of climate change, change is needed within the WTO to better ensure a mutually supportive relationship between tradeTrade and environmental protection.
The World Trade Organisation (WTO) has often referred to its dispute resolution system as the “crown jewel” of the world trading system. However, the current crisis on the lack of a quorum in the Appellate Body is slowing down the dispute resolution process at the WTO considerably. Notwithstanding, African countries have an alternative dispute resolution mechanism available under the soon to be operationalized African Continental Free Trade Area Agreement (AfCFTA Agreement). This paper aims to highlight the efficiency of the AfCFTA dispute resolution mechanism as compared to that of the WTO. To this end, it is divided into four parts. Section 1 sets the background to this paper by expounding dispute settlement at both the WTO and AfCFTA. Section 2 focuses on the concept of concurrent jurisdiction between the two systems. It intends to find out whether recourse to one system automatically bars a state party from seeking a remedy in the other dispute resolution system. Section 3 concentrates on the similarities between the two systems. Section 4 highlights the lessons that AfCFTA may draw from other dispute settlement mechanisms (DSM) on the African continent and recommends changes to the AfCFTA dispute resolution system.
The United States (US) began blocking members’ appointment and reappointments to the World Trade Organization’s (WTO) Appellate Body (AB) in 2011, causing creeping paralysis of this institution. Currently, the AB has no members and is inactive. The prospects for resurrecting the AB in its pre-crisis form currently appear dim, moreover, though the present crisis may prompt fresh thinking about world trade governance and dispute settlement. The likelihood of an enduring dispute settlement solution replicating the heavily legalised AB system is debatable, given the political and legal dynamics that have led to the present impasse.Blame for the current predicament of the Appellate Body is often cast on recent US administrations, with Barack Obama beginning a practice of blocking specific appointments, a strategy that evolved under Donald Trump, and to date appears to remain in place under the Biden administration. Given that the US was one of the principal architects of the AB and the WTO regime more generally, the central role of these administrations in undoing the AB is remarkable. To understand how international trade law and dispute settlement are to move forward, we accordingly need to understand how we reached the present situation.To this end, we examine US attitudes and behaviour towards the WTO, focusing on the AB specifically and international trade governance more generally, set in the context of broader developments in US domestic and external policy. Our survey extends from the WTO’s creation under the Clinton administration to the collapse of the Appellate Body under the Trump administration, using official sources and additional primary and secondary materials to trace US attitudes and conduct. We explore both continuity and change in American attitudes through this examination and outline how we reached the present situation, highlighting in turn potential systemic and institutional changes that may conceivably overcome this impasse. In general, we find that US behaviour over time is not as perplexing as it may appear. Rather, the Trump administration’s actions and attitudes can be understood as reflective of longstanding US preferences and concerns, with successive administrations having been unable to address these within the WTO/AB framework as set up in 1995.
Con una metodología fenomenológico-hermenéutica y con el objetivo de encontrar un término medio entre un multilateralismo clásico y un minilateralismo moderno en el contexto de las relaciones económicas internacionales en aras del logro de situaciones de justicia, orden y, en general, de bienestar global, se propone una hipótesis de trabajo según la cual, siempre que en los acuerdos internacionales se incluyan disposiciones de protección de los derechos humanos a manera de obligaciones erga omnes y considerando la dignidad humana como fuente y valor supremos del derecho, por un lado, se mitiga la posibilidad de erosionar el sistema mediante artilugios propios de la teoría de la elección pública y, por otro lado, se descubre que se le da un sentido de justicia a una fría meta de liberalización comercial en los términos del artículo II del Acuerdo General sobre Aranceles Aduaneros y Comercio. Con esta aproximación a los acuerdos internacionales de comercio puede llegarse a una sinonimia entre comercio justo y comercio libre.
Over the past decades, the phenomenon of the “judicialization” and “proliferation of international courts and tribunals” has dominated international legal scholarship. This trend has also affected international economic law, and scholarship continues to pay significant attention to the continued proliferation of dispute settlement mechanisms, primarily in the investment and trade sectors. It is questionable, however, whether every third-party dispute resolution means should be deemed judicial. New dispute resolution mechanisms in the investment and trade sectors face constraints on their powers, for instance regarding the regulation of procedure, the determination of standing to be sued, and the interpretation of the applicable law. This chapter inquires whether the promotion of such constrains impairs the judicial character of these dispute settlement bodies. The chapter first reviews several basic notions behind the judicial character, namely the settlement of disputes, clarification and development of the law, independence, impartiality, and adversariality. It then assesses the promoted limits on the powers of courts and tribunals in the investment and trade sectors. The chapter concludes that the advancement of certain constraints on judicial powers in the field of international economic law marks a departure from the promotion of the judicial towards more administrative dispute settlement means.
The »return of great power competition« between (among others) the US, China, Russia and the EU is a major topic in contemporary public debate. But why do we think of world politics in terms of »competition«? Which information and which rules enable states and other actors in world politics to »compete« with one another? Which competitive strategies do they pursue in the complex environment of modern world politics? This cutting-edge edited collection discusses these questions from a unique interdisciplinary perspective. It offers a fresh account of competition in world politics, looking beyond its military dimensions to questions of economics, technology and prestige.
Law is usually understood as an orderly, coherent system, but this volume shows that it is often better understood as an entangled web. Bringing together eminent contributors from law, political science, sociology, anthropology, history and political theory, it also suggests that entanglement has been characteristic of law for much of its history. The book shifts the focus to the ways in which actors create connections and distance between different legalities in domestic, transnational and international law. It examines a wide range of issue areas, from the relationship of state and indigenous orders to the regulation of global financial markets, from corporate social responsibility to struggles over human rights. The book uses these empirical insights to inform new theoretical approaches to law, and by placing the entanglements between norms from different origins at the centre of the study of law, it opens up new avenues for future legal research. This title is also available as Open Access.
International courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question.
This chapter is dedicated to the more ambitious forms of judicial cooperation between the WTO and the new generation EU FTA DSMs that could take place in the future. The chapter first analyses the possibility and opportunity of using the WTO Secretariat’s services in the adjudicatory process under the new generation EU FTAs. It then assess the viability of prospective extension of WTO jurisdiction over FTA disputes. The desirability of these progressive cooperative interactions is assessed and the existing legal framework and the necessary changes potentially needed for these prospective developments to materialise are evaluated. Finally, the chapter determines the likelihood of these developments seeing the light of day. In line with the conceptual framework establishing that cooperation could take place in the form of ad-hoc exchanges such as judicial communication, or in the more ambitious structural form representing a platform for ongoing judicial interactions, this final chapter addresses the latter. It has a purely prospective approach and only aims to ignite the discussion on the more ambitious forms of cooperation. Thus, it seeks to conclude the book by inviting the reader to engage in an exercise of contemplation on prospective developments in cooperative interactions.
This chapter analyses whether, in case of the pertinent substantive areas, the new generation EU FTA DSMs have the necessary procedural features to make them genuinely compete with the WTO DSM and be considered viable alternatives to the later. It will, inter alia, consider whether the new generation EU FTAs provide expeditious, automatic, predictable, fair, well designed, and transparent DSMs that also deliver effective means of implementation. The chapter will also ponder upon broader consequences resulting from the competing procedural considerations of the DSMs analysed, such as the procedural lessons learnt as a result of the competition.
This chapter introduces the details of the existing context that supports the argument that it is the right time to consider whether FTA DSMs have begun to genuinely compete with the WTO mechanism and whether they could be used more often by the parties for resolving trade disputes. It argues that the current challenges faced by the WTO DSM influence this competition and could provide the necessary impetus for the rise in use of FTA DSMs as alternatives.
This chapter addresses judicial communication as a potential cooperative interaction between the WTO and the new generation EU FTA DSMs. First, it introduces the concept of and pre-conditions for judicial communication, as well as its functions and the factors that could encourage it. Then, it describes the different types of such communication to establish which could occur in the communication between the DSMs of the WTO and the new generation EU FTAs. The chapter then illustrates the cases in which such communication is likely to occur and the specific limits within which coherence could be promoted. This is followed by an assessment of two possible directions of communication that could take place in a responsive or unresponsive manner: WTO adjudicators communicating with new generation EU FTA panels by citing their jurisprudence and the opposite situation where new generation EU FTA panels would refer to WTO case law (which also covers potential interim appeal arbitral awards under the MPIA). It evaluates the degree to which the existing legal framework allows potential synergies to be enhanced by way of judicial communication between the DSMs of the WTO and the new generation EU FTAs, including under specific FTA provisions on the interpretative role of WTO jurisprudence, also in the context of the latest developments in the international trade regime.
While Risse and Wollner make an important contribution to theorising global justice and trade, I identify certain concerns with their approach and suggest an alternative that addresses these. First, I query their emphasis on subjection to the trade regime as a morally salient feature, suggesting their argument trades on an ambiguity, and fails to connect the trade regime, as a trigger, with their preferred account of trade-justice-as-non-exploitation. Second, I examine their treatment of the WTO, how they understand international organisations as inheritors of states’ obligations, and how far an organisation like the WTO can or should be self-consciously reoriented towards justice-as-non-exploitation. Third, I ask how their account is distinct from existing approaches, and whether it makes sense to apply the same conception of justice across diverse agents and institutions. I conclude by sketching an alternative approach, which makes the justification of states’ policies to outsiders the central problem of trade justice.
The creation of the WTO revived the use of safeguard measures to protect troubled industries against surges in import competition. Many of these measures have now been challenged in the WTO dispute resolution process, and in each case the process has found the challenged measure to be a violation of WTO law. This paper examines the WTO rules on safeguards from an economic perspective. Among other things, it argues that the textual preconditions for the use of safeguards in the treaty text are incoherent, and that the Appellate Body has compounded the problem through a series of dubious and unhelpful rulings. The result is a situation in which nations cannot use safeguards without facing a near certainty that they will be found invalid. Those who believe that safeguard measures are wasteful protectionism may welcome these developments, but it is by no means clear that the trading system will benefit in the long run.
Tax Measures on Soft Drinks and Other Beverages – Report of the Appellate Body (Mexico–Soft Drinks)
- Wto Mexico
135 WTO, Mexico – Tax Measures on Soft Drinks and Other Beverages – Report of the Appellate Body (Mexico–Soft
Drinks), 24 March 2006, WT/DS308/AB/R.
136 North American Free Trade Agreement 1992, 32 ILM 289, 605 (1993).
United States -Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada -Report of the Appellate Body
WTO, United States -Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from
Canada -Report of the Appellate Body, 17 February 2004, WT/DS257/AB/R.
Certain Measures Affecting the Renewable Energy Generation Sector/Canada – Measures Relating to the Feed-in Tariff Program – Report of the Appellate Body
- Wto Canada
119 WTO, Canada – Certain Measures Affecting the Renewable Energy Generation Sector/Canada – Measures
Relating to the Feed-in Tariff Program – Report of the Appellate Body, 24 May 2013, WT/DS412/AB/R, WT/
DS426/AB/R.
126 Decision on Differential and More Favorable Treatment,Reciprocity and Fuller Participation of Developing Countries
- Gatt Bisd
126 Decision on Differential and More Favorable Treatment,Reciprocity and Fuller Participation of Developing
Countries, 28 November 1979, GATT BISD (26th Supp.) (1980).
Back to Court after Shrimp-Turtle? Almost But Not Quite Yet: India's Short Lived Challenge to Labor and Environmental Exceptions to the European Union's Generalized System of Preferences
The following draws from my previous scholarship on this dispute. See Howse, 'Back to Court after Shrimp-Turtle? Almost But Not Quite Yet: India's Short Lived Challenge to Labor and Environmental Exceptions
to the European Union's Generalized System of Preferences', 18 American University International Law
Review (2003) 1333;
Reconciling Political Sanctions with Globalization and Free Trade: India's WTO Challenge to Drug Enforcement Conditions in the European Community Generalized System of Preferences: A Little Known Case with Major Repercussions for "Political
- Howse
Howse, 'Reconciling Political Sanctions with Globalization and Free Trade: India's
WTO Challenge to Drug Enforcement Conditions in the European Community Generalized System of
Preferences: A Little Known Case with Major Repercussions for "Political" Conditionality in US Trade
Policy', 4 Chicago Journal of International Law (2003) 385;
The Death of GSP? The Panel Ruling in the India-EC Dispute over Preferences for Drug Enforcement
- Howse
Howse, 'The Death of GSP? The Panel Ruling
in the India-EC Dispute over Preferences for Drug Enforcement', 1 Bridges (ICTSD) (2004) 7;
Appellate Body Ruling Saves the GSP, at Least for Now
- Howse
Howse,
' Appellate Body Ruling Saves the GSP, at Least for Now', 4 Bridges (ICTSD) (2004) 4.
United States -Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia -Report of the Appellate Body
WTO, United States -Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand
and Australia -Report of the Appellate Body, 16 May 2001, WT/DS177/AB/R, WT/DS178/AB/R.
Communities -Conditions for the Granting of Tariff Preferences to Developing Countries -Report of the Appellate Body
- European Wto
WTO, European Communities -Conditions for the Granting of Tariff Preferences to Developing Countries -Report of the Appellate Body, 20 April 2004, WT/DS246/AB/R, at 925
Communities -Regime for the Importation, Sale and Distribution of Bananas -Report of the Appellate Body
- European Wto
WTO, European Communities -Regime for the Importation, Sale and Distribution of Bananas -Report of the
Appellate Body, 25 September 1997, WT/DS27/AB/R, at 591.
Protection for Pharmaceutical and Agricultural Chemical Products -Report of the Appellate Body
- India -Patent Wto
WTO, India -Patent Protection for Pharmaceutical and Agricultural Chemical Products -Report of the Appellate
Body, 16 January 1998, WT/DS50/AB/R, at 9.