Wu: Law and Politics on Export Restrictions: WTO and Beyond

Chien-Huei Wu (Academia Sinica) has published Law and Politics on Export Restrictions: WTO and Beyond (Cambridge Univ. Press 2021). Here’s the abstract:

Delving into export restrictive measures this book links the key areas of WTO law, public international law, investment and competition law to expose how and why WTO rules on export dimension are insufficient due to export bias; how public international law helps to justify their adoption or maintenance; and how investment and competition laws contribute to their regulation. Built on works on accession protocols and national security exceptions, this book goes beyond international trade law and looks into international political economy, competition and investment law. It contributes to debates in conceptualising public and private forms of export restrictions, appreciating the complementary nature of trade and competition law in disciplining them; capturing the dynamic between trade and investment policies for their effectuation and circumvention; and bridging trade law and public international law to better understand their impositions for political and diplomatic purposes with the invocation of the national security justification.

Basedow: Why de-judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor-to-State Dispute Settlement reforms

Johann Robert Basedow (London School of Economics - International Political Economy) has posted Why de-judicialize? Explaining state preferences on judicialization in World Trade Organization Dispute Settlement Body and Investor-to-State Dispute Settlement reforms (Regulation & Governance, forthcoming). Here's the abstract:

Judicialization scholarship suggests that states must seek the de-judicialization of international dispute settlement mechanisms to regain regulatory space. Why then do some states seek a de-judicialization yet others increased judicialization of dispute settlement mechanisms in their pursuit of regulatory space? This article advances a twofold argument. First, the concept of judicialization has been erroneously conflated with state perceptions of regulatory space under dispute settlement mechanisms. States aspiring to consolidate regulatory space may pursue de-judicialization and increased judicialization alike. Second, states' preferences for de-judicialization or increased judicialization to regain regulatory space should largely depend on conceptions of legitimate international law as either intergovernmental contracts or cosmopolitan quasi-constitutional order. The article illustrates these arguments at the example of US and EU efforts to reform the Dispute Settlement Body of the World Trade Organization and investor-to-state dispute settlement. Both seek to increase regulatory space. Yet, the USA pursues de-judicialization while the EU promotes judicialization.

Pollack: International Court-Curbing in Geneva: Lessons from the Paralysis of the WTO Appellate Body

Mark A. Pollack (Temple Univ. - Political Science & Law) has posted International Court-Curbing in Geneva: Lessons from the Paralysis of the WTO Appellate Body. Here's the abstract:

Following a decade of international court creation during the 1990s, the 21st century has witnessed a widespread backlash against many international courts from dissatisfied member governments. By and large, studies of international court backlash have taken an optimistic tack, noting that most international courts have survived episodes of backlash intact or – in the case of the paralyzed Appellate Body (AB) of the World Trade Organization (WTO) – are likely to do so after a temporary period of backlash-induced slumber. In this context, this paper analyzes the United States’ successful effort to paralyze the AB, to derive lessons from this striking case of backlash against one of the world’s most active and independent international courts. Undertaken in the context of a collective research project on “Reversing Delegation,” this account of the AB crisis is organized in five parts, examining in turn the empirical history of delegation, politicization, de-delegation, counter-mobilization, and the (interim) outcome of this episode during the Trump administration and the early months of the Biden Administration. First, I demonstrate that the creation of the AB was a classic instance of delegation of third-party dispute-settlement power, and that the AB quickly emerged as an active, and possibly activist, agent of international trade liberalization. Second, I explore the roots of US politicization of the AB, noting that dissatisfaction with AB jurisprudence preceded the Trump administration, although I argue that Trump’s politicization of the AB was more far-reaching, and more public, than that of his predecessors. Third, I examine the Trump administration’s stepped-up effort to use its veto power to paralyze the AB, an act of at least temporary de facto de-delegation. Fourth, I examine the pushback from the many other WTO members that sought to defend the AB: although these efforts have been widespread and consistent, I argue, they failed, over a period of years, to budge the US position. Fifth and finally, I analyze the outcome, thus far, of the US campaign, arguing that, by the standards of domestic curb-curbing activities, it has been remarkably successful, not only in temporarily paralyzing the AB but also in demonstrating that such efforts are allowed and even facilitated by WTO rules, planting the seeds for a potentially significant recontracting with the AB or its successor, and exerting a chilling effect on future AB judges following the end of the current crisis.

Webinar: China and the WTO: Why Multilateralism Still Matters

On June 16, 2021, STALS (Sant’Anna Legal Studies) will host a webinar on the book "China and the WTO: Why Multilateralism Still Matters." Details are here.

Special Issue: Trade Conflicts, Multilateral Cooperation and WTO Reform

The latest issue of Global Policy (Vol. 12, Special Issue 3, 2021) focuses on "Trade Conflicts, Multilateral Cooperation and WTO Reform." The table of contents is here.

Vidigal: Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO

Geraldo Vidigal (Univ. of Amsterdam - Law) has posted Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO (Legal Issues of Economic Integration, forthcoming). Here's the abstract:

The past four years have shown that, in contrast to previous assessments that saw the WTO dispute settlement organs as exercising irresistible authority over the WTO Agreements, a WTO Member can single-handedly derail the functioning of the WTO by obstructing appointments to the Appellate Body. This paper investigates the origins and character of this feature of the WTO Agreements and examines possible means to overcome it, arguing that merely appointing seven new Appellate Body members will not be sufficient to ensure the future operation of the organization. If Members wish to avoid obstruction of appointments becoming a regularly employed negotiation tactic, they must explicitly establish that this possibility is not an integral feature of the institutional design of the WTO – a fire alarm that Members can resort to in case they are dissatisfied with developments within the organization – but an unwarranted loophole in the WTO institutional structure. Among the possible courses of action available to address it, the one that is likely to be both politically feasible in the short term and free from doubt regarding its legal effects is a decision, made by consensus by the Membership, to clarify the relationship between the general decision-making authority of the Ministerial Conference and the provisions governing the appointment of Appellate Body members.

Mavroidis & Sapir: China and the WTO: Why Multilateralism Still Matters

Petros C. Mavroidis (Columbia Univ. - Law) & Andre Sapir (Université libre de Bruxelles - Economics) have published China and the WTO: Why Multilateralism Still Matters (Princeton Univ. Press 2021). Here's the abstract:

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China’s accession to the World Trade Organization (WTO) in 2001 was rightly hailed as a huge step forward in international cooperation. However, China’s participation in the WTO has been anything but smooth, with China alienating some of its trading partners, particularly the United States. The mismatch between the WTO framework and China’s economic model has undermined the WTO’s ability to mitigate tensions arising from China’s size and rapid growth. What has to change? China and the WTO demonstrates that unilateral pressure, by the United States and others, is not the answer. Instead, Petros Mavroidis and André Sapir show that if the WTO enacts judicious reforms, it could induce China’s cooperation, leading to a renewed confidence in the WTO system.

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The WTO and its predecessor, the General Agreement on Tariffs and Trade, are predicated on liberal domestic policies. They managed the previous accessions of socialist countries and big trading nations, but none were as large or powerful as China. Mavroidis and Sapir contend that for the WTO to function smoothly and accommodate China’s unique geopolitical position, it needs to translate some of its implicit principles into explicit treaty language. To make their point, they focus on two core complaints—that Chinese state-owned enterprises (SOEs) benefit from unfair trade advantages, and that domestic companies, private as well as SOEs, impose forced technology transfer on foreign companies as a condition for accessing the Chinese market—and they lay out specific proposals for WTO reforms.

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In an age of global trade disputes, China and the WTO offers a timely exploration of unprecedented challenges to the current multilateral system and fresh ideas for lasting solutions.

Kucik & Puig: Extending Trade Law Precedent

Jeffrey Kucik (Univ. of Arizona - Political Science) & Sergio Puig (Univ. of Arizona - Law) have posted Extending Trade Law Precedent. Here's the abstract:

Precedent is celebrated as a fundamental feature of dense legal systems as it creates predictability, builds coherence, and enhances the authority of courts and tribunals. But, in international adjudication, precedent can also affect interstate cooperation and ultimately the legitimacy of international organizations. Wary of this, most international dispute settlement systems are designed so that rulings do not set obligatory precedent. In this Article, we describe the role of precedent in the Appellate Body (AB) of the World Trade Organization (WTO) to explain how precedent can affect compliance with the decisions of international courts and tribunals (ICs). We make two main contributions. First, we show that there can be precedent without a formal stare decisis rule. In theory the AB has a rule against binding precedent. Based on empirical evidence, however, we show that the AB has in fact a strong norm of relying on prior decisions. Second, we show that over time, the widening of legal commitments can result from extending precedent to new situations and this has an impact on the ability or willingness of states to comply. Our findings have implications for the WTO and beyond. For the WTO, we note that efforts to better define the value of precedent is unlikely to resolve the general mistrust of the AB and therefore, we propose other solutions to control the drift resulting from precedent. Beyond the WTO, we note that international scholars should account for the inter-temporal dimension of legal commitments in analyzing and explaining compliance with international law.

Hoekman & Mavroidis: To AB or Not to AB? Dispute Settlement in WTO Reform

Bernard Hoekman (European Univ. Institute) & Petros C. Mavroidis (Columbia Univ. - Law) have posted To AB or Not to AB? Dispute Settlement in WTO Reform. Here's the abstract:

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent WTO dispute resolution need not include an AB. An appropriately redesigned single-stage process can serve just as well, if not better.

Conference: BIICL WTO Conference 2020

On October 22-23, 2020, the British Institute of International and Comparative Law will host virtually its 2020 WTO Conference. The program is here. Here's the idea:

This is a pivotal moment for trade affairs and a critical time to take stock and reflect on the future of global economic governance and connectivity. The conference will bring together leading academics and practitioners to explore emerging ideas and the most recent developments, at a critical time for international trade law. This year, amidst a global pandemic, the conference will take place virtually over two half days: 22 October 12.00-17.00 and 23 October 09.00-13.00 (BST) BIICL will host 6 virtual panels around the world to cover strategically important geographical areas where major developments, discussions and decisions impacting international trade are taking place.

Alter: Contracting v. Multilateralism in Global Economic Governance: Before, during and after the WTO

Karen J. Alter (Northwestern Univ. - Political Science; Univ. of Copenhagen - iCourts) has posted Contracting v. Multilateralism in Global Economic Governance: Before, during and after the WTO (in International Economic Dispute Settlement: Demise or Transformation?, Manfred Elsig, Rodrigo Polanco & Peter van den Bossche eds., forthcoming). Here's the abstract:

This chapter, for a book focused on the future of the World Trade Organization, discusses three ways that global economic law and corresponding transnational dispute settlement systems have been constructed across time: via private contracting, inter-state contracting, or through principled multilateralism. Offering a global capitalism and law perspective, the chapter compares the ideal type of each model to the historical practice, identifying what multilateralism provides that contracting does not. The larger argument is that all three modes of law-making should and will co-exist. We should therefore be thinking about which mode of law-making is best for a particular issue or context, and how we might use the other modes to address problems that arise in each approach. The chapter then considers how contracting can supplant the WTO, and the tradeoffs associated with such an outcome.

Vidigal: Re-Imagined Communities: The WTO Appellate Body and the Communitization of WTO Law

Geraldo Vidigal (Univ. of Amsterdam - Law) has posted Re-Imagined Communities: The WTO Appellate Body and the Communitization of WTO Law. Here's the abstract:

Do the WTO Agreements create a mere multi-party contract, establishing bundles of bilateral legal relations that pairs of WTO Members remain free to shape and reshape on the basis of mutual consent? Or do they establish a community, a common legal system whose rules can only be modified pursuant to the legal regime’s collectively agreed procedures? By establishing a common institutional framework for the negotiation of trade relations, the WTO Agreements set up a forum in which decisions can be made collectively affecting all Members. On the other hand, the early years of the WTO saw a controversy with respect to the character of this forum, if merely an opportunity for bilateral bargains or a legal community whose rules condition the bilateral relations among the Members. This chapter argues that the Appellate Body’s reading of the function of adjudication and the institutional provisions of the WTO Agreements has resulted in a significant communitization of WTO law. Contrary to what some expected, this communitization did not result in a trade-focused regime. Instead, the approach adopted by the Appellate Body to the WTO Agreements puts on equal footing ‘trade’ and ‘non-trade’ goals. Trade-restrictive and even discriminatory measures are permissible as long as they find a justification in a non-trade goal that the community of Members determines to be legitimate. Crucially, the Appellate Body infers the views of this community not only from decisions of WTO bodies but also from other multilateral decisions and documents that, in its view, express a consensus or a common understanding regarding interpretations and legitimate non-trade concerns.

Qin: WTO Reform: Multilateral Control over Unilateral Retaliation – Lessons from the US-China Trade War

Julia Ya Qin (Wayne State Univ. - Law) has posted WTO Reform: Multilateral Control over Unilateral Retaliation – Lessons from the US-China Trade War. Here's the abstract:

Preventing trade wars is a key function of the WTO rule-based system. But as the United States and China waged the largest trade war in history, the WTO sat on the sidelines, unable to do anything to stop the fight. Why has the system failed so spectacularly? In a search for answers, this article examines the context of the US-China conflict and makes a number of findings. First, under WTO law, the burden of avoiding this trade war was placed on China, the victim of US aggressive unilateral tariffs; and contrary to China’s claim, its retaliatory tariffs cannot be justified by general principles of international law. Second, the WTO rule prohibiting unilateral retaliation was born out of a grand political bargain, but it embodies the wisdom of Adam Smith and achieves the goal of the Havana Charter to turn retaliation into an instrument of international order. Third, the WTO’s inability to prevent China’s resort to unilateral retaliation reveals a deficiency in its existing legal design, but that deficiency can be fixed procedurally as proposed herein. Given the importance of preventing large-scale trade wars in the future, improving multilateral control over unilateral retaliation should be a top priority in WTO reform.

Lo, Nakagawa, & Chen: The Appellate Body of the WTO and Its Reform

Chang-fa Lo, Junji Nakagawa, & Tsai-Fang Chen have published The Appellate Body of the WTO and Its Reform (Springer 2020). The table of contents is here. Here's the abstract:

This is the first book that critically examines the reform of the Appellate Body (AB) of the World Trade Organization (WTO) in light of the current crisis resulting from the U.S. blocking of the appointment of its members. The reform of the AB is critical, as the appointment crisis could lead to the demise of “the jewel in the crown,” which may even cause the dismantling of the WTO as a whole. This book covers various aspects of the crisis and its reform. Specifically, as the crisis cannot be fully understood without reviewing the role of the AB from the broader perspectives of the other functions of the WTO, the book examines the reform of the AB from the broader perspectives of the WTO governance. Additional focus is on the reform of the AB in relation to its specific functions. Available options are provided to address the AB crisis, as well as discussion of wider implications beyond the WTO. Contributed by world-renowned academics, experts, and practitioners in the field of international economic law, this volume provides a comprehensive analysis of the AB crisis and its solutions.

Pauwelyn & Pelc: Who Writes the Rulings of the World Trade Organization? A Critical Assessment of the Role of the Secretariat in WTO Dispute Settlement

Joost Pauwelyn (Graduate Institute of International and Development Studies) & Krzysztof Pelc (McGill Univ.) have posted Who Writes the Rulings of the World Trade Organization? A Critical Assessment of the Role of the Secretariat in WTO Dispute Settlement. Here's the abstract:

The figure of the judge or adjudicator in international tribunals has been garnering growing attention. Yet we know relatively little about how adjudicators actually produce their rulings. Anecdotal evidence suggests that for all the attention panelists and Appellate Body (AB) members at the World Trade Organization (WTO) receive, the Secretariat plays an overlooked and increasingly important role, from selecting panelists and writing an initial “issues paper” for the adjudicators, to participating in internal deliberations and assisting in the drafting of the actual ruling.

We examine this role in greater detail, and ask who, of the Secretariat vs. adjudicators, exerts more influence over the drafting of WTO panel reports? We rely on two different text analysis approaches to attribute authorship. In both cases, the findings are unambiguous: the WTO Secretariat exerts significantly more influence over the writing of WTO panel reports than panelists themselves. We then examine what factors have led to the Secretariat’s rise to prominence. Originally a response to “rogue” GATT panels in the 1980s, its functions grew over time as a result of the greater experience and expertise of its (permanent) staff, compared with (part-time) adjudicators, and its limited accountability. We also elaborate on how the Secretariat’s role matters, affecting the role of precedent, the low number of dissents, and the increasing length of proceedings and scope of rulings.

Designed to keep “rogue” panels in check, the Secretariat may thus have contributed to the very “overreach” that members like the US are lashing out against. Correcting this “overreach” and resolving the current crisis at the WTO may then, paradoxically, require a greater voice for adjudicators, and a reduced role for the Secretariat.

Agon: International Adjudication on Trial: The Effectiveness of the WTO Dispute Settlement System

Sivan Shlomo Agon (Bar-Ilan Univ. - Law) has published International Adjudication on Trial: The Effectiveness of the WTO Dispute Settlement System (Oxford Univ. Press 2019). Here's the abstract:

Is the World Trade Organization (WTO) dispute settlement system (DSS) effective? How exactly is the effectiveness of this adjudicative system to be defined and measured? Is its effectiveness all about compliance? If not, what goals, beyond compliance, is the WTO DSS expected to achieve? Has it fulfilled these objectives so far, and how can their achievement and the systems effectiveness be enhanced in the future?

Building on a theoretical model derived from the social sciences, this book lays down the analytical framework required to answer these questions, while crafting a revealing insider's account of the WTO DSS-one of the most important and debated sites of the evolving international judiciary. Drawing on interviews with WTO adjudicators, WTO Secretariat staff, ambassadors, trade delegates, and trade lawyers, the book offers an elaborate analysis of the various goals steering the DSS's work, the diverse roles it plays, the challenges it confronts, and the outcomes it produces. Through this insider look at the WTO DSS and detailed examination of landmark trade disputes, the book uncovers the oft-hidden dynamics of WTO adjudication and provides fresh perspective on the DSS's operation and the undercurrents affecting its effectiveness.

Given the pivotal role the WTO DSS has assumed in the multilateral trading regime since its inception in 1995 and the systemic pressures it has recently come to face, this book makes an important contribution towards understanding and measuring the benefits (as well as the costs) this adjudicative body generates, while providing valuable insights into current debates on its reform.

Gao: Disruptive Construction or Constructive Destruction? Reflections on the Appellate Body Crisis

Henry S. Gao (Singapore Management Univ. - Law) has posted Disruptive Construction or Constructive Destruction? Reflections on the Appellate Body Crisis (in The Appellate Body of the WTO and Its Reform, Chang-fa Lo, Jinji Nakagawa, & Tsai-yu Lin eds., forthcoming). Here's the abstract:

Over the past few months, the blockage of the Appellate Body appointment process by the United State (hereinafter U.S.) has emerged as the biggest existential threat to the World Trade Organization (hereinafter WTO). In response to the criticisms from other WTO Members, the U.S. justified its action as a way to raise people’s attention on long-standing problems in the Appellate Body (hereinafter AB). Are the U.S. criticisms valid? Even if assuming that the U.S. allegations are correct, is the specific approach that the U.S. has taken legitimate? Drawing from both the treaty text and jurisprudence of WTO law, this Chapter argues that the U.S. criticisms, especially those concerning the systemic issues in WTO dispute settlement, are deeply flawed. Moreover, the paper also argues that, regardless of the validity of the substantive claims of the U.S., the U.S. has chosen the wrong approach by holding hostage the entire AB appointment process. The paper concludes with practical suggestions on how to overcome the AB crisis and restore its functions.

Wagner: The Impending Demise of the WTO Appellate Body: From Centrepiece to Historical Relic?

Markus Wagner (Univ. of Wollongong - Law) has posted The Impending Demise of the WTO Appellate Body: From Centrepiece to Historical Relic? (in The Appellate Body of the WTO and Its Reform, Chang-fa Lo ed., forthcoming). Here's the abstract:

The current crisis engulfing the multilateral trading system has crystalized in the dispute over the (re-)appointment of the members of the World Trade Organization’s Appellate Body. While the legislative arm of the organization has never lived up to its potential, its dispute settlement arm with the Appellate Body at its apex was seen as a lodestar for other international courts and tribunals. The United States has taken issue not only with individual decisions of the Appellate Body (as well as individual Appellate Body members), but with the institution as such. The article recounts the important institutional redesign that has led to the Appellate Body becoming the World Trade Organization’s institutional “centerpiece”. These very same developments are now destined to lead to the Appellate Body’s downfall with potential reverberations for the entire World Trade Organization’s dispute settlement process. Moreover, it threatens the institution as a whole, unless some last minute compromise can be found between various competing visions of global economic governance.

Mitchell & Mishra: Regulating Cross-Border Data Flows in a Data-Driven World: How WTO Law Can Contribute

Andrew D Mitchell (Univ. of Melbourne - Law) & Neha Mishra (Univ. of Melbourne - Law) have posted Regulating Cross-Border Data Flows in a Data-Driven World: How WTO Law Can Contribute (Journal of International Economic Law, forthcoming). Here's the abstract:

While the free cross-border movement of data is essential to many aspects of international trade, several countries have imposed restrictions on these data flows. The pre-internet rules of the World Trade Organization (‘WTO’) discipline some of these restrictions, but they are insufficient. Unfortunately, so are the electronic commerce chapters in modern preferential trade agreements. This article argues that reformed WTO rules, that take account of the policy challenges of the data-driven economy, are required. These reforms would facilitate internet openness while ensuring consumer and business trust, promote digital inclusion of developing countries and incorporate clear exceptions for legitimate domestic policies.

Conference: BIICL WTO Conference 2019

On May 31, 2019, the British Institute of International and Comparative Law will host its 2019 WTO Conference. The program is here. Here's the idea:

The 2019 WTO Conference will examine the implications of recent global developments, including current challenges to multilateralism, regional and bilateral agreements and the intersection between trade and human rights. The unprecedented challenges in international trade law posed by the ongoing crisis at the WTO and by Brexit constitute an unparalleled opportunity to bring together worldwide expertise and innovative analysis.