Sustainable development in international law making and trade: International food governance and trade in agriculture

This timely book provides an accessible insight into how the concept of sustainable development can be made operational through its translation into legal terms. Understood as a multidimensional legal principle, sustainable development facilitates coherent international law making. Using this notion as an analytical lens on the WTO Agreement on Agriculture, the book considers the unresolved question of what a sustainable and coherent agricultural trade agreement could look like.

Why Do Economies Enter into Preferential Agreements on Trade in Services? Assessing the Potential for Negotiated Regulatory Convergence in Asian Services Markets

More than one-third of the World Trade Organization-notified services trade agreements that were in effect between January 2008 and August 2015 involved at least one South or Southeast Asian trading partner. Drawing on Baier and Bergstrand’s (2004) determinants of preferential trade agreements and using the World Bank’s database on the restrictiveness of domestic services regimes (Borchert, Gootiiz, and Mattoo 2012), we examine the potential for negotiated regulatory convergence in Asian services markets. Our results suggest that Asian economies with high levels of preexisting bilateral merchandise trade and wide differences in services regulatory frameworks are more likely candidates for services trade agreement formation. Such results lend support to the hypothesis that the heightened “servicification” of production generates demand for the lowered services input costs resulting from negotiated market openings.

Democratic Legitimation of Trade Policy Tomorrow: TTIP, Democracy and Market in the Swiss Constitution

Free Trade Agreements (FTAs) are increasingly more concerned with regulatory convergence, rather than trade liberalisation through elimination of tariffs. This appears to result more often in so-called dynamic trade agreements, which still evolve after adoption. Further economic integration in democracies, however, depends on the support of the constituency. This article takes a closer look at the democratic legitimation of global economic integration in a case study on Switzerland. It finds that the current principles and institutions of democracy in Switzerland are unlikely to fully accommodate the new regulatory challenges of dynamic FTAs.

Innovation and Development in the Age of Climate Change Adaptation: Open or Closed?

Change Adaptation: Open or Closed? Paper read at the Second African International Economic Law Network Conference, 7-8 March 2013, Wits School of Law, Johannesburg, South Africa. In a time of rapid convergence of technologies, goods, services, hardware, software, the traditional classifications that informed past treaties fail to remove legal uncertainty, or advance welfare and innovation. As a result, we turn our attention to the role and needs of the public domain at the interface of existing intellectual property rights and new modes of creation, production and distribution of goods and services. The concept of open culture would have it that knowledge should be spread freely and its growth should come from further developing existing works on the basis of sharing and collaboration without the shackles of intellectual property. Intellectual property clauses find their way into regional, multilateral, bilateral and free trade agreements more often than not, and can cause public discontent and incite unrest. Many of these intellectual property clauses raise the bar on protection beyond the clauses found in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In this paper we address the question of the protection and development of the public domain in service of open innovation in accord with Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in light of the Objectives (Article 7) and Principles (Article 8) set forth in TRIPS. Once areas of divergence and reinforcement between the intellectual property regime and human rights have been discussed, we will enter into options that allow for innovation and prosperity in the global south. We then conclude by discussing possible policy developments.

Toward alignment of carbon standards under the Transatlantic Trade and Investment Partnership

With its wide coverage of economic spheres and the variety of trade and investment measures currently under negotiation, the Transatlantic Trade and Investment Partnership (TTIP) opens windows of opportunity for climate change mitigation and adaptation. The paper examines the possible avenues and the WTO law implications for the alignment of emissions standards between the European Union (EU) and United States of America (US). Looking particularly at the automobile sector, it argues that TTIP negotiators should strive for the mutual recognition of equivalence of EU and US car emissions standards, while pursuing full harmonisation in the long term. It concludes that the preferential trade agreement (PTA) status of TTIP would not be able to exempt measures taken for regulatory convergence from compliance with applicable WTO rules, particularly the rules of the WTO’s Agreement on Technical Barriers to Trade (TBT). Furthermore, the EU and the US would not be able to ignore requests for the recognition of equivalence of third countries’ standards and would need to provide the grounds upon which they assess third countries’ standards as not adequately fulfilling the objectives of their own regulations and therefore rejecting them.

Reflections on the Nature of Preferentialism in Services Trade

The Graduate Institute organized an academic workshop and roundtable on the occasion of EFTA's 50th Anniversary in Geneva under the chairmanship of H.E. Doris Leuthard, President of the Swiss Confederation. Pierre Sauve, Deputy Managing Director and Director of Studies, WTI and Co-leader, NCCR-Trade work programme on preferentialism and Anirudh Shingal, Senior Research Fellow, WTI and Co-leader, NCCR-Trade work programme on impact assessment of trade, co-authored a paper on the nature of preferentialism in services trade, which Anirudh presented at the workshop. The event was extremely well-attended by high profile dignitaries and academics including President Leuthard; Director General of the WTO, Pascal Lamy; trade ministers of Brazil and Finland; Jan Kubis, Executive Secretary of the UNECE and several current and former ambassadors. The academic workshop, moderated by Theresa Carpenter (Graduate Institute, Geneva), began in the morning with Prof. Victor Norman's (Norwegian School of Economics & Business Administration) presentation on the future of EFTA. Other presentations included those by Prof. Peter Egger (ETH Zurich) on the structural estimation of gravity models with market entry dynamics and by Prof. Richard Baldwin (Graduate Institute, Geneva) on 21st century regionalism. The high-profile Panel in the afternoon, moderated by Prof. Richard Baldwin, was led by President Leuthard who spoke on free trade agreements and the multilateral trading system in 2020. The keynote address at the Panel was delivered by Prof. Jagdish Bhagwati (Coulmbia University), who spoke on strengthening defences against protectionism and liberalizing trade.

Enquiry into the Notion of Cultural Protectionism in the Media and its Dimensions in Cyberspace

Cultural protectionism has been an element of national and foreign policies, as an extension of state sovereignty expressed both in a defensive and offensive manner. While the generic protectionist formula in the sense of restraining trade between states through measures such as import tariffs or quotas and through privileging domestic production has somewhat disintegrated over time under the rationale for free trade and the strong practical evidence of its benefits, the particular case of cultural protectionism has persevered. As we reveal in this paper, however, it has been modified, or at least its rhetoric has changed. The enquiry into the notion of cultural protectionism or cultural diversity, as the current political jargon would have it, is but one of the paper’s objectives. Its second and certainly more ambitious goal is the search for the normative dimensions of cultural diversity policies in the global digital space, asking what adjustments are needed and how feasible the entire project of diversity regulation in this environment may be. Taking into account the specificities of cyberspace and in a forward-looking manner, we propose some adjustments to current media policy practices that could better serve the goal of a sustainably diverse cultural environment.

Non-tariff barriers, integration and the transatlantic economy

We examine the potential impact of TTIP through trade-cost reductions, applying a mix of econometric and computational methods to develop estimates of the benefits (and costs) for the EU, United States, and third countries. Econometric results point to an approximate 80% growth in bilateral trade with an ambitious trade agreement. However, at the same time, computable general equilibrium (CGE) estimates highlight distributional impacts across countries and factors not evident from econometrics alone. Translated through our CGE framework, while bilateral trade increases roughly 80%, there is a fall of about 2.5% in trade with the rest of the world in our central case. The estimated gains in annual consumption range between 1% and 2.25% for the United States and EU, respectively. A purely discriminatory agreement would harm most countries outside the agreement, while the direction of third-country effects hinges critically on whether NTB reductions end up being discriminatory or not. Within the United States and EU, while labour gains across skill categories, the impact on farmers is mixed.

Subsidies, Clean Energy, and Climate Change

Estimates show that fossil fuel subsidies average USD 400–600 billion annually worldwide while renewable energy (RE) subsidies amounted to USD 66 billion in 2010 and are predicted to rise to USD 250 billion annually by 2035. Domestic political rationales for energy subsidies include promoting innovation, job creation and economic growth, energy security, and independence. Energy subsidies may also serve social and environmental goals. Whether and to what extent subsidies are effective to achieve these goals or instead lead to market distortions is a matter of much debate and the trade effects of energy subsidies are complex. This paper offers an overview of the types of energy subsidies that are used in the conventional and renewable energy sectors, and their relationship with climate change, in particular greenhouse gas emissions. While the WTO’s Agreement on Subsidies and Countervailing Measures (ASCM) is mostly concerned with harm to competitors, this paper considers the extent to which the Agreement could also discipline subsidies that cause harm to the environment as a global common. Beyond the existing legal framework, this paper surveys a number of alternatives for improving the ability of subsidies disciplines to internalize climate change costs of energy production and consumption. One option is a new multilateral agreement on subsidies or trade remedies (with an appropriate carve-out in the WTO regime to allow for it if such an agreement is concluded outside it). Alternatively, climate change-related subsidies could be included as part of another multilateral regime or as part of regional agreements. A third approach would be to incorporate rules on energy subsidies in sectorial agreements, including a Sustainable Energy Trade Agreement such as has been proposed in other ICTSD studies.

The Legal Character of Sino-African Tied Aid: Cunning Fox or Wise Dragon?

Paper presented by Charlotte Sieber-Gasser at the African IEL Network Conference, 5th-6th of May 2011, The Mandela Institute, Johannesburg (South Africa) Sino-African trade has seen a fifty-fold increase in the years 1999 to 2008. China became the second most important trading partner for the African economy and already overtook the US as the most important trading partner in some African regions. However, all of this trade is taking place independent from legal regulation by a preferential or other trade agreement. Interestingly, Sino-African trade has seen particular increase in countries that have agreed to tied aid arrangements with China. Taking a closer look at these tied aid arrangements (the so-called Angola-Model) reveals, that some aspects might indeed have a positive effect on Sino-African trade in general. Several grey areas might potentially conflict with WTO-law. However, tied aid is excluded from the GATS, the GATT, and the GPA – in other words, it is outside the sphere of WTO-law. The paper analyses three critical aspects of the Angola-Model version of tied aid with reference to WTO-law, and elaborates the importance of regulating trade-distorting aspects of modern tied aid.

Legal Framework for Cross-Regional Networks: The Case of Services and Migration

Paper prepared by Marion Panizzon and Charlotte Sieber-Gasser for the International Conference on the Political Economy of Liberalising Trade in Services, Hebrew University of Jerusalem, 14-15 June 2010 Recent literature has shed light on the economic potential of cross-border networks. These networks, consisting of expatriates and their acquaintances from abroad and at home, provide the basis for the creation of cross-border value added chains and therewith the means for turning brain drain into brain circulation. Both aspects are potentially valuable for economic growth in the developing world. Unilateral co-development policies operating through co-funding of expatriate business ventures, but also bilateral agreements liberalising circular migration for a limited set of per-sons testify to the increasing awareness of governments about the potential, which expatriate networks hold for economic growth in developing countries. Whereas such punctual efforts are valuable, viewed from a long term perspective, these top-down, government mandated Diaspora stimulation programs, will not replace, this paper argues, the market-driven liberalisation of infrastructure and other services in developing countries. Nor will they carry, in the case of circular labour migration, the political momentum to liberalise labour market admission for those non-nationals, who will eventually emerge as the future transnational entrepreneurs. It will take a combination of mode 4 and infrastructure services openings-cum regulation for countries at both sides of the spectrum to provide the basis and precondition for transnational business and entrepreneurial networks to emerge and translate into cross-border, value added production chains. Two key issues are of particular relevance in this context: (i) the services sector, especially in infrastructure, tends to suffer from inefficiencies, particularly in developing countries, and (ii) labour migration, a highly complex issue, still faces disproportionately rigid barriers despite well-documented global welfare gains. Both are hindrances for emerging markets to fully take advantage of the potential of these cross-border networks. Adapting the legal framework for enhancing the regulatory and institutional frameworks for services trade, especially in infrastructure services sectors (ISS) and labour migration could provide the incentives necessary for brain circulation and strengthen cross-border value added chains by lowering transaction costs. This paper analyses the shortfalls of the global legal framework – the shallow status quo of GATS commitments in ISS and mode 4 particular – in relation to stimulating brain circulation and the creation of cross-border value added chains in emerging markets. It highlights the necessity of adapting the legal framework, both on the global and the regional level, to stimulate broader and wider market access in the four key ISS sectors (telecommunications, transport, professional and financial services) in developing countries, as domestic supply capacity, global competitiveness and economic diversification in ISS sectors are necessary for mobilising expatriate re-turns, both physical and virtual. The paper argues that industrialised, labour receiving countries need to offer mode 4 market access to wider categories of persons, especially to students, graduate trainees and young professionals from abroad. Further-more, free trade in semi-finished products and mode 4 market access are crucial for the creation of cross-border value added chains across the developing world. Finally, the paper discusses on the basis of a case study on Jordan why the key features of trade agreements, which promote circular migration and the creation of cross-border value added chains, consist of trade liberalisation in services and liberal migration policies.

A Transatlantic Trade and Investment Partnership Agreement: Implications for Swiss Agriculture

To say that regionalism is gaining momentum has become an understatement. To mourn the lack of progress in multilateral trade rule-making is a commonplace in the discourse of politicians regretting the WTO negotiation standstill, and of “know-what-to-do” academics. The real problem is the uneven level-playing field resulting from increasing differences of rules and obligations. The Transatlantic Trade and Investment Partnership Agreement (TTIP) is a very ambitious project. WTI studies in 2014 have shown that the implications for Switzerland could be enormous. But even the combined market power of the two TTIP participants – the EU and the USA – will not level the playing field impairing the regulatory framework, and the market access barriers for trade in agriculture. Such differences will remain in three areas which, incidentally, are also vital for a global response to the food security challenge to feed 9 billion people before the year 2050: market access, non-tariff barriers, and trade-distorting domestic support programmes. This means that without multilateral progress the TTIP and other so-called mega-regionals, if successfully concluded, will exacerbate rather than lessen trade distortions. While this makes farmers in rich countries safer from competition, competitive production in all countries will be hampered. Consequently, and notwithstanding the many affirmations to the contrary, farm policies worldwide will continue to only address farmer security without increasing global food security. What are the implications of the TTIP for Swiss agriculture? This article, commissioned by Waseda University in Tokyo, finds that the failure to achieve further reforms – including a number of areas where earlier reforms have been reversed – is presenting Switzerland and Swiss agriculture with a terrible dilemma in the eventuality of a successful conclusion of the TTIP. If Swiss farm production is to survive for more than another generation, continuous reform efforts are required, and over-reliance on the traditional instruments of border protection and product support is to be avoided. Without a substantial TTIP obliging Switzerland to follow suit, autonomous reforms will remain extremely fragile.

Analysis of the prospects for updating the trade pillar of the European Union-Chile Association Agreement

The perception of the present state of trade relations with Chile is obscured by a lack of adequate understanding of its legal framework as well as of the policy behind it. This study attempts to clarify the present state of and future prospects for trade between the EU and Chile through an examination of previous agreements and the EU’s new approach to trade liberalisation. The authors agree with the large consensus existing on both the EU and Chilean sides regarding the efficacy of the Association Agreement, but note that any extension of an agreement with Chile should capture the spirit of older EU agreements rather than simply following the ‘NAFTA route’. The study also includes a comparative analysis between the EU-Chile agreement and current trade agreements being negotiated by the EU and Chile with third countries.

Analysis of the upcoming Modernisation of the Trade Pillar of the European Union-Mexico Global Agreement

Study for the EU Parliament co-authored by Rodrigo Polanco: The 1997 Global Agreement between the EC and its Member States and Mexico, together with the set of decisions taken in its framework, has been effective, and thus modifications of the agreement are mainly motivated by changes in the global landscape since it was first enacted. Therefore, broad considerations on how the European Union (EU) trade policy is shaped are extremely relevant for the upcoming negotiations with Mexico. In this context, the needs and expectations, both from the EU and Mexico, regarding any further agreements are examined, focusing in particular on areas beyond trade in goods and services such as procurement, investment, and regulatory cooperation. It is argued that the 'old' Association Agreements should be taken as models for any modifications, given their emphasis on EU-specific issues and their ability to accommodate the needs of Mexico in any deepened agreement.

A Plurilateral Agenda for Services? Assessing the case for a Trade in Services Agreement (TISA)

This paper explores a number of procedural and substantive considerations arising from ongoing attempts to craft a plurilateral Trade in Services Agreement (TISA) among the so-called “Really Good Friends of Services” coalition of WTO Members. The paper suggests that considerable scope exists to move forward a multilateral negotiating agenda on services that both the digital revolution and a continued surge of preferential rule-making has rendered increasingly obsolete. As the most significant attempt to date to craft a GATS Article V-compatible PTA in services, TISA offers considerable promise. The paper, however, cautions that the case for embedding TISA into the architecture of WTO rules alongside the General Agreement on Trade in Services or in its place is weak on both procedural and substantive grounds to the extent that the ongoing talks take place behind doors that remain closed even to the WTO Secretariat, let alone to many of the world’s leading developing country suppliers of services, and involve potentially significant departures from GATS rules liable to complicate any hoped for multilateral migratory journey. Key words: WTO, GATS, trade in services, plurilateral agreements, critical mass negotiations, preferential trade liberalization.