The World Trade Organization - Law, Practice and Policy, 3rd edition

The WTO is one of the most important intergovernmental organizations in the world, yet the way in which it functions as an organization and the scope of its authority and power are still poorly understood. This comprehensively revised new edition of the acclaimed work by an outstanding team of WTO law specialists provides a complete overview of the law and practice of the WTO.

Emissions trading and the GATS financial services provisions : a case study of the Australian carbon pricing mechanism

Purpose The purpose of this paper is to determine whether greenhouse gas (GHG) tradeable instruments will be classified as financial products within the scope of the World Trade Organization (WTO) law and to explore the implications of this finding. Design/methodology/approach This purpose is achieved through examination of the units of the Australian Carbon Pricing Mechanism (CPM), namely eligible emissions units. These units are analysed through the lens of the definition of financial products provided in the General Agreement for Trade in Services (the GATS). Findings This paper finds that eligible emissions units will be classified as financial instruments, and therefore the provisions that govern their trade will be regulated by the GATS. Considering this, this paper explores the limitations that are introduced by the Australian legislation on the trade of eligible emissions units. Research limitations/implications This paper is limited in its analysis to the Australian CPM. In order to draw conclusions on the issues raised by this analysis it is necessary to consider the WTO requirements against an operating emissions trading scheme. The Australian CPM presents a contemporary model of an appropriate scheme. Originality/value The findings in this paper are crucial in a GHG constrained society. This is because emissions trading schemes are becoming popular measures for pricing GHG emissions, and for this reason the units that are traded and surrendered for emissions liabilities must be classified appropriately on a global scale. Failing to do this could result in differential treatment that may be contrary to the intentions of important global agreements, such as the WTO covered agreements.

GSP+ and Human Rights::Is the EU's Approach the Right One?

Among the purposes of the EU’s GSP+ programme is to link human rights to trade incentives, with the idea of using such incentives to promote developing countries’ adoption of the values found in core human rights treaties. With the re-renewal of the GSP (and GSP+) programmes to take effect in January 2014, it is fruitful to examine their efficacy and consistency with WTO law. In this article, I argue the GSP+ programme is not only ineffective in obtaining an improvement in human rights conditions for the vast majority of the world’s population, but it is also incompatible with WTO law. A stick-based regime where human rights abuses are linked to trade sanctions is a better way to proceed. After outlining the GSP+ system, and its linkage of human rights and trade, I analyse its efficacy and WTO consistency. Having shown that it is ineffective and contrary to WTO law, I argue that trade sanctions based on a PPM distinction and/or GATT XX(a) may be the appropriate means of linking trade and human rights. The article ends with some concluding remarks on the need for the careful design of such a system.

Intellectual Property and the EU’s Deep Trade Agenda

The EU is considered to be one of the main proponents of what has been called the deep trade agenda—that is, the push for further trade liberalization with an emphasis on the removal of domestic non-tariff regulatory measures affecting trade, as opposed to the traditional focus on the removal of trade barriers at borders. As negotiations on the Doha Development Round have stalled, the EU has attempted to achieve these aims by entering into comprehensive free trade agreements (FTAs) that are not only limited exclusively to tariffs but also extend to non-tariff barriers, including services, intellectual property rights (IPRs), competition, and investment. These FTAs place great emphasis on regulatory convergence as a means to secure greater market openings. The paper examines the EU's current external trade policy in the area of IP, particularly its attempts to promote its own regulatory model for the protection of IP rights through trade agreements. By looking at the IP enforcement provisions of such agreements, the article also examines how the divisive issues that are currently hindering the progress of negotiations at WTO level, including the demands from developing countries to maintain a degree of autonomy in the area of IP regulation as well as the need to balance IP protection with human rights protection, are being dealt with in recent EU FTAs.

Movement of Capital and Trade in Services:Distinguishing Myth from Reality Regarding the GATS and the Liberalization of the Capital Account

This article will analyze the interplay between capital movements and trade
in services as structured in World Trade Organization (WTO) law, and it will
assess the implications of the capital account liberalization for the freedom of
WTO Members to pursue their economic policies. Although the movement
of capital is largely confined to the domain of international financial or monetary
policy, it is regulated by WTO law due to its role in the process of
financial services liberalization, which generally requires liberalized capital
flows. From a legal perspective, the interplay between capital movements
and trade in services requires striking a delicate balance between the right
of market access and the parallel right of economic stability. Indeed, a liberalized
regime for capital movements could pose serious stability problems
during times of crisis. For this reason, it is necessary that Members are able
to derogate from their obligations and adopt emergency measures.
Regulating the movement of capital in the General Agreement on Trade in
Services (GATS) requires stretching the regulatory oversight of WTO law
over different aspects of international economic policy. Indeed, capital movements are a fundamental component of the balance of payments and have a
major role in shaping monetary, fiscal, and financial policies. This article will
analyze how the discipline provided by the GATS on capital movements will
affect not only trade in services, but also the Members’ policy space on
monetary and fiscal policy. The article will conclude that while the GATS offers enough policy space for the maintenance of financial stability, it does
not fully take into consideration the need of Members to control capital
movements in order to conduct monetary policies.

Trade versus Culture : The Policy of Cultural Exception and the World Trade Organization

This chapter is a contribution to the Palgrave Handbook of European Media Policy (co-edited by Pauwels, Donders & Loisen). It is the chapter’s purpose to examine the proponents of the cultural exception policy, their strategies and demands, and to explore how they came to be reflected in the law and policy of the World Trade Organization (WTO). The chapter also looks at the current state of affairs, as although WTO law has not undergone any substantial amendments since its entry into force in 1995, the media landscape has in the meantime been truly transformed, in some aspects in a revolutionary manner. The broader picture of global governance has not remained still either, with new and emergent powers, changing mechanisms of rule-making and taking.

The Protection and Promotion of Cultural Diversity in a Digital Networked Environment : Mapping Possible Advances to Coherence

The present paper is the result of a four-year-long project examining the concept and the policies of cultural diversity and the impact of digital media upon the regulatory environment where the goal of cultural diversity is to be achieved. The focus of the project was primarily on the international level and in particular on the World Trade Organization (WTO) and the United Nations Educational Scientific and Cultural Organization (UNESCO), which also epitomise the often framed as opposing pair of trade and culture. In the broad context of the project, we sought to pinpoint the essential elements of an international trade-and-culture conducive framework that can also overcome the existing fragmentation in the field of international law and move towards more coherent solutions. In a narrower context, we sketched some possible improvements to the WTO law that can make it more suitable to the digital networked environment and to the objective of diverse media that some states aspire. . Our key messages are: (1) Neither the WTO nor UNESCO currently offers appropriate solutions to the trade and culture predicament and allows for efficient protection and promotion of cultural diversity; (2) The trade and culture discourse is overly politicised and due to the related path dependencies, a number of feasible solutions appears presently blocked; (3) The digital networked environment has profoundly changed the ways cultural content is created, distributed, accessed and consumed, and may thus offer good reasons to reassess and readjust the present models of governance; (4) Access to information appears to be the most appropriate focus of the discussions with view to protecting and promoting cultural diversity in the new digital media setting, both in local and global contexts; (5) This new focal point demands also broadening and interconnecting the policy discussions, which should go beyond the narrow scope of audiovisual media services, but cautiously account for the developments at the network and applications levels, as well as in other domains, such as most notably intellectual property rights protection; (6) There are various ways in which the WTO can be made more conducive to cultural policy considerations and these include, among others, improved and updated services classifications; enhanced legal certainty with regard to digitally transferred goods and services; incorporation of rules on subsidies for services and on competition.

The Jurisprudence of the World Trade Organization 2014

In 2014, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) adopted seven panel reports and six Appellate Body rulings. Two of the cases relate to anti-dumping measures. Three cases, comprising five complaints, are of particular interest and these are summarized and discussed below. China – Rare Earths further refines the relationship between protocols of accession and the general provisions of WTO agreements, in particular the exceptions of Article XX GATT. Recourse to that provision is no longer excluded but depends on a careful case-by-case analysis. While China failed to comply with the conditions for export restrictions, the case reiterates the problem of insufficiently developed disciplines on export restrictions on strategic minerals and other commodities in WTO law. EC – Seals Products is a landmark case for two reasons. Firstly, it limits the application of the Agreement on Technical Barriers to Trade (TBT Agreement) resulting henceforth in a narrow reading of technical regulations. Normative rules prescribing conditions for importation are to be dealt with under the rules of the General Agreement on Tariffs and Trade (GATT) instead. Secondly, the ruling permits recourse to public morals in justifying import restrictions essentially on the basis of process and production methods (PPMs). Meanwhile, the more detailed implications for extraterritorial application of such rules and for the concept of PPMs remain open as these key issues were not raised by the parties to the case. Peru – Agricultural Products adds to the interpretation of the Agreement on Agriculture (AoA), but most importantly, it confirms the existing segregation of WTO law and the law of free trade agreements. The case is of particular importance for Switzerland in its relations with the European Union (EU). The case raises, but does not fully answer, the question whether in a bilateral agreement, Switzerland or the EU can, as a matter of WTO law, lawfully waive their right of lodging complaints against each other under WTO law within the scope of their bilateral agreement, for example the Agreement on Agriculture where such a clause exists.

Greening electricity through taxing: An analysis of GATT constraints

This paper examines the legal feasibility of different design options for implementing a differentiated electricity tax based on renewable energy (RE) certificates aimed at promoting green electricity generation. It discusses the issue of likeness in light of the recent WTO jurisprudence and looks at the possibility of justification of differentiated tax rates under the general exceptions of the GATT. It also scrutinizes the potential legal hurdles for the implementation of different tax design options including the use of certificates for RE tax exemption. It argues that the placing of a quota on the number of foreign RE certificates eligible for tax exemptions would likely affect the volumes of imported green electricity and therefore trigger a violation of GATT rules. At the same time, restrictions on the eligibility of RE certificates might be defended under WTO law if they are based on qualitative criteria, such as the attachment of RE certificates to green electricity flows or to a green electricity label that is equally available to domestic and foreign suppliers of RE electricity.

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.

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.