Gao, Raess, & Zeng: China and the WTO: A Twenty-Year Assessment

Henry Gao (Singapore Management Univ.), Damian Raess (Universität Bern), & Ka Zeng (Univ. of Arkansas) have published China and the WTO: A Twenty-Year Assessment (Cambridge Univ. Press 2023). The volume is available open access. Here's the abstract:

Examining the twenty years since China acceded to the World Trade Organization, this collection provides an original, systematic assessment of the opportunities and challenges that China has presented to the WTO. Offering in-depth analyses of the 'two-way' relationship between China and the WTO, the contributions explore a range of key issues from the varied effects of WTO membership for China and the global economy to the responses of the WTO members to China's rapid economic growth. It presents diverse perspectives of leading scholars from multiple disciplines, including law, economics, political science, and international relations, as well as practical insights from senior policymakers from both China and the United States. This is an invaluable contribution to ongoing debates about the implications of the rise of China for global economic governance and enriches discussions of the wide-ranging implications of China's growing integration into the multilateral trading system, both now and in the future.

Gascoigne: Causation in the Law of the World Trade Organization: An Econometric Approach

Catherine Gascoigne (Macquarie Univ. - Law) has published Causation in the Law of the World Trade Organization: An Econometric Approach (Cambridge Univ. Press 2023). Here's the abstract:

Causation in the Law of the World Trade Organization: An Econometric Approach is for both scholars and practitioners of WTO law with an interest in the causal questions that WTO law raises. Assuming no prior knowledge of causal philosophy or statistical analysis, Dr Gascoigne discusses the problems in the current approach to causation in the WTO jurisprudence and proposes an alternative methodology that draws on causal philosophy and econometric analysis. The book demonstrates how this methodology could be harnessed to make causal determinations for the purpose of implementing trade remedies and to make out claims of serious prejudice. It also argues that the methodology could be helpful for assessing the impact of domestic legislation on policy objectives under the General Exceptions and the Technical Barriers to Trade Agreement as well as for calculating the amount of retaliation permissible under the Dispute Settlement Understanding.

Conference: BIICL WTO Conference 2023

On October 6, 2023, the British Institute of International and Comparative Law will host, in the hybrid format, its 2023 WTO Conference. The topic is: "Technology and Trade: Challenges and Opportunities." The program is here.

Panel: Rethinking the WTO Dispute Settlement System

On May 24, 2023, there will be a panel, in the hybrid format, on "Rethinking the WTO Dispute Settlement System," at the University of Ottawa. Details are here.

Brink & Orden: Agricultural Domestic Support Under the WTO Experience and Prospects

Lars Brink & David Orden have published Agricultural Domestic Support Under the WTO Experience and Prospects (Cambridge Univ. Press 2023). Here's the abstract:

The WTO Agreement on Agriculture subjects different groups of developed and developing countries to different limits on domestic support and allows various exemptions from these limits. Offering a comprehensive assessment of the Agreement's rules and implementation, this book develops guidance toward socially desirable support policies. Although dispute settlement has clarified interpretation of the Agriculture and SCM Agreements, gaps remain between the legal disciplines and the economic effects of support. Considering the Agriculture Agreement also in the context of today's priorities of sustainability and climate change mitigation, Lars Brink and David Orden build a strategy that aligns the rules and members' commitments with the economic impacts of agricultural support measures. While providing in-depth analysis of the existing rules, their shortcomings and the limited scope of ongoing negotiations, the authors take a long-term view, where policies directed toward evolving priorities in agriculture are compatible with strengthened rules that reduce trade and production distortions.

Gao & Zhou: Between Market Economy and State Capitalism: China's State-Owned Enterprises and the World Trading System

Henry Gao (Singapore Management Univ. - Law) & Weihuan Zhou (Univ. of New South Wales - Law) have published Between Market Economy and State Capitalism: China's State-Owned Enterprises and the World Trading System (Cambridge Univ. Press 2022). Here's the abstract:

One major issue facing the world trading system today is how to deal with the challenge of China's state capitalism. Many commentators believe that the existing WTO rules are insufficient and, thus new rules are needed. This book challenges this conventional wisdom. Through meticulous studies and fresh analysis of the commitments in China's WTO accession package, existing rules on state capitalism in WTO agreements and recent attempts to make new rules on these issues at the bilateral, regional and multilateral levels, this book argues that existing WTO rules, especially those on subsidies, coupled with China-specific rules in its accession protocol, do provide feasible tools to counter China's state capitalism. This book also discusses the reasons for the lack of usage of these rules and provides concrete policy suggestions on how the rules may be better utilized, as well as how to conduct constructive negotiations on new rules in the WTO and beyond.

Pauwelyn: Taking Stakeholder Engagement in International Policy-Making Seriously: Is the WTO Finally Opening-Up?

Joost Pauwelyn (Graduate Institute of International and Development Studies) has posted Taking Stakeholder Engagement in International Policy-Making Seriously: Is the WTO Finally Opening-Up? Here's the abstract:

In the face of multiple global challenges, in many IOs major policy-making initiatives are under way. In the last two years alone, the WHO started negotiations on a pandemic treaty, the UN kicked off talks on a plastics pollution treaty and the WTO is engaged in ground-breaking initiatives on topics ranging from e-commerce and investment facilitation to plastic pollution and fossil fuel subsidies. In all of these talks and discussions, a central question is how to fairly and effectively engage external stakeholders. While lagging behind for decades, the WTO has also woken up to the potential of more actively engaging stakeholders in international trade policy-making, both to make better policies and mitigate implementation challenges. This contribution describes the ground-breaking steps taken in a number of Member-led informal discussions and dialogues: the Trade and Environmental Sustainability Structured Discussions (TESSD) and the Informal Dialogue on Plastics Pollution and Environmentally Sustainable Plastics Trade (IDP). The objective of this contribution is to describe and applaud recent developments and initiate a discussion on how the process can be made more inclusive and robust and, potentially, also be extended to formal WTO activities. In this context, the WHO’s ongoing negotiations on a new pandemic treaty are used to offer an interesting point of comparison.

Mavroidis: The WTO Dispute Settlement System: How, Why and Where?

Petros C. Mavroidis (Columbia Univ. - Law) has published The WTO Dispute Settlement System: How, Why and Where? (Edward Elgar Publishing 2022). Here's the abstract:

This incisive book provides a comprehensive overview of the WTO dispute settlement practice from 1995 up until the present day, illustrating the need for it to be resurrected from its current state of crisis.

By inquiring into the current set-up of WTO adjudication system, the book explores to what extent its original intent has been followed in practice. Its empirical analysis of decades of data regarding the number, duration, and subject matter of dispute adjudications, as well as the frequency of implemented or non-implemented settlements, illuminates the effectiveness of the system and highlights the issues that have led to the WTO’s present predicament. Petros C. Mavroidis employs these findings to build a case for the urgent reform of the WTO dispute settlement system by virtue of its accomplishments. He then concludes with a proposal for a reinvigorated ‘Dispute Settlement Understanding 2.0’.

Claussen: Next-Generation Agreements and the WTO

Kathleen Claussen (Univ. of Miami - Law) has posted Next-Generation Agreements and the WTO (World Trade Review, forthcoming). Here's the abstract:

This paper reviews the trade agreement landscape and argues that the conventional understanding of trade agreements as encapsulated in the WTO Agreements is now outdated. This misperception about trade agreements is not just an institutional insufficiency. Concentration on those agreements has led many practitioners and commentators to underestimate the variable texture of the global trade agreement fabric.

But these shortcomings have not inhibited states from concluding innovative alternatives to regulate and manage the cross-border movement of goods and services. As this paper shows, trade-related agreements that do not fit the perceived traditional mold have proliferated. Given these advances, more policy and scholarly attention is required. Accordingly, this paper serves as a roadmap for the accommodation of trade agreements within the WTO and as an agenda for additional research.

Kucik, Peritz, & Puig: Legalization and Compliance: How Judicial Activity Undercuts the Global Trade Regime

Jeffrey Kucik (Univ. of Arizona), Lauren Peritz (Univ. of California, Davis), & Sergio Puig (Univ. of Arizona) have posted Legalization and Compliance: How Judicial Activity Undercuts the Global Trade Regime (British Journal of Political Science, forthcoming). Here's the abstract:

The crisis facing the World Trade Organization illustrates the trade-off between legalization and compliance in international legal systems. Dispute bodies can sometimes “overreach” in their rulings, leading to resistance from member states. This article looks at one form of legal overreach: the extension of legal precedent. We argue that extending previous decisions can reduce the flexibility that states include deliberately in their agreements. We utilize original data on individual applications of precedent in the World Trade Organization's Appellate Body decisions from 1995 to 2015 and on policy responses to those decisions. We find strong evidence that extending precedent reduces on-time compliance. It also leads to longer delays before members comply. The results speak to the life cycles of international organizations, as well as questions of design and cooperation.

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:

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.

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:

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.