Mavroidis: The Sources of WTO Law and their Interpretation: Is the New OK, OK?

Petros C. Mavroidis (Columbia Univ. - Law) has published The Sources of WTO Law and their Interpretation: Is the New OK, OK? (Edward Elgar Publishing 2022). Here's the abstract:

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In this incisive book, Petros C. Mavroidis examines the complex practice of interpreting the various sources of World Trade Organization (WTO) law. Written by a leading expert in WTO scholarship, the book serves as a broad grounding in the legal theory of the WTO contract and its sources, as well as its application in practice.

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Delving into the workings of the Vienna Convention of the Law of Treaties (VCLT) and its use within the WTO courts, the author provides a critical assessment of the interpretation of the WTO contract and illuminates the role of WTO adjudicators and the Secretariat in clarifying obligations. Mavroidis then explores the uncertainty and distortion that emerge as a result of the discretion from adjudicators invited by the VCLT, explaining why this matters and offering steps towards resolving these issues.

Bacchus: Trade Links: New Rules for a New World

James Bacchus has published Trade Links: New Rules for a New World (Cambridge Univ. Press 2022). Here's the abstract:

The World Trade Organization is undergoing an existential crisis. Trade links the world not only through the flow of international commerce in goods, services, and ideas; but also through its economic, environmental, and social impacts. Trade links are supported by a WTO trading system founded on rules established in the 20th century which do not account for all the modern changes in the global economy. James Bacchus, a founder of the WTO, posits that this global organization can survive and continue to succeed only if the trade links among WTO members are revitalized and reimagined. He explains how to bring the WTO into the twenty-first century, exploring the ways it can be utilized to combat future pandemics and climate change and advance sustainable development, all while continuing to foster free trade. This book is among the first to comprehensively explain the new trade rules needed for our new world.

Pollack: International court curbing in Geneva: Lessons from the paralysis of the WTO Appellate Body

Mark A. Pollack (Temple Univ. - Political Science) has posted International court curbing in Geneva: Lessons from the paralysis of the WTO Appellate Body (Governance, forthcoming). Here's the abstract:

The 21st century has witnessed a backlash against many international courts (ICs). Studies of IC backlash have generally taken an optimistic tack, noting that most courts have survived 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 slumber. In this context, this paper analyzes the United States' successful effort to paralyze the AB, deriving lessons from this deviant case of backlash against one of the world's most active and independent ICs. Undertaken in the context of the “Reversing Delegation” research project, this account is organized in five parts. First, I demonstrate that the creation of the AB was a classic instance of delegation of dispute-settlement power, and that the AB quickly emerged as an active agent of trade liberalization. Second, I explore the roots of politicization, noting that dissatisfaction with AB jurisprudence preceded the Trump administration, although Trump's delegitimation of the AB was more far-reaching than that of his predecessors. Third, I examine the administration's use of the veto power to paralyze the AB, an act of de facto de-delegation. Fourth, I assess the pushback from the many other WTO members that sought to defend the AB, showing how they failed to blunt the US campaign. Fifth, I analyze the remarkably successful outcome of the US attack, and draw lessons for judicial independence and the rule of law in international politics.

Gao: China’s Changing Perspective on the WTO: From Aspiration, Assimilation to Alienation

Henry S. Gao (Singapore Management Univ. - Law) has posted China’s Changing Perspective on the WTO: From Aspiration, Assimilation to Alienation. Here's the abstract:

Twenty years after it became a Member of the WTO, China’s image in popular perception has shifted from the biggest success story of the world trading system to its biggest challenge. In the past few years, tons of research have been conducted on what other WTO Members should or could do to deal with the China challenge, but not much attempt has been made to understand the Chinese perspective on its WTO Membership. Focusing only on the China challenge without understanding the Chinese perspective is rather problematic as it treats China as a passive object rather than an active subject, one with significant economic and political clouts in the world trading system today. This paper fills the research gap by providing the first systemic review of this important yet ignored question, which in my view, would be the key to address the China challenge. The paper argues that the Chinese perspective on the WTO has changed from viewing it as the symbol for its aspiration to integrate into the world economy, to trying to assimilate the Chinese economic system with that of the market-based multilateral trading system, to increasing alienations with the core values of WTO in response to the attacks on its economic system. The paper concludes with lessons drawing from China’s changing perspective, especially on how to manage the China challenge in the multilateral trading system.

Iacovides: The Law and Economics of WTO Law: A Comparison with EU Competition Law's 'More Economic Approach'

Marios C. Iacovides (Stockholm Univ. - Law) has published The Law and Economics of WTO Law: A Comparison with EU Competition Law's 'More Economic Approach' (Edward Elgar Publishing 2021). Here's the abstract:

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This insightful book proposes taking inspiration from EU competition law structures to inform and implement a more economic approach in WTO law. The book provides a detailed account of the two legal systems regarding likeness, harm, and remedies, in order to draw comparisons. Taking a unique approach in synthesizing law and economics with comparative law methods, it considers WTO law holistically to propose a legal transplant from EU competition law to WTO law.

Drawing from EU competition law, the book generates comparative ideas that can improve the understanding of fundamental WTO concepts such as likeness, less favourable treatment, discrimination, trade harm, trade effects, and the level of permissible countermeasures. Based on this analysis, the author offers normative suggestions to improve the efficiency of WTO law through correct implementation of a more economic approach. As part of this approach, the author recommends an increased capacity for all key actors involved in WTO dispute settlement.

Conference: BIICL WTO Conference 2021

On December 10, 2021, the British Institute of International and Comparative Law will host in a hyrbrid format its 2021 WTO Conference. The topic is: "COVID-19 and World Trade: Resilience and Building Back Better." The program is here.

10th SIEL Conversation: Institutions and Dispute Settlement under WTO

The 10th SIEL Conversation, on the topic "Institutions and Dispute Settlement under WTO," will take place on Thursday, October 28, 2021. Registration and other details are available here.

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.

Ivanova: The Competing Jurisdictions of the WTO and the UNCLOS Dispute Settlement Fora in the Context of Multifaceted Disputes

Elena Ivanova has published The Competing Jurisdictions of the WTO and the UNCLOS Dispute Settlement Fora in the Context of Multifaceted Disputes (Nomos 2021). Here's the abstract:

The work examines the interaction between the dispute settlement mechanisms established under the UNCLOS and the WTO Agreement, while exploring the challenges that multifaceted disputes straddling different treaty regimes pose to international courts and tribunals of limited jurisdiction such as the WTO DSB and UNCLOS courts and tribunals. It addresses these challenges through the lens of the WTO treaty and the UNCLOS, while providing answers to the following questions: to what extent the mentioned specialized adjudicatory bodies can refer to other rules of international law, especially treaty rules, given their limited jurisdiction; what the implications of the pronouncements of the UNCLOS courts and tribunals are with respect to the WTO DSB and vice versa; how should they approach multifaceted disputes involving both WTO law and law of the sea issues; what rules govern their interaction. The work examines and systematizes the latter rules, while particularly focusing on res judicata. Concerning res judicata, it tackles the questions what the status and meaning of res judicata is and to what types of preclusive pleas it can give rise in international law; whether it can operate as an inter-systemic rule. The work proposes solutions in case a multifaceted dispute allegedly involving different treaties and different branches of international law is submitted for resolution before different dispute settlement fora of limited jurisdiction and in doing so it contributes to the discussion on international procedural law and interaction of treaties and dispute settlement mechanisms.

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:

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.

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.

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.