This article analyzes the decision of the WTO's Appellate Body in the dispute between Japan and Korea over Japan's imposition of countervailing duties on DRAMs imported from Korea. The legal analysis comments on the analysis of evidence, the lack of remand authority in the WTO system, and the meaning of a ‘direct transfer of funds’. The economic analysis discusses several issues related to determining the magnitude of the benefit to a firm of a financial bailout and the appropriate duration of a countervailing duty to offset the injury caused by a non-recurrent subsidy. We offer legal and economic criticisms of the Appellate Body's conclusion regarding the relationship between subsidies and injury to the domestic import-competing industry. We conclude that the Appellate Body's decision weakens the requirement of a causal link between subsidies and injury and, consequently, may open the door to protectionist abuse of the Subsidies and Countervailing Measures Agreement.

Since 1998, non-state actors have had access to submit an ‘amicus curiae’ brief to the WTO DSM. Like other forms of non-state actor involvement in the WTO, amicus curiae access has been controversial. Despite this controversy, non-state actors have made use of this access and submitted amicus curiae briefs. This article asks: What has come of these briefs once they are submitted and what explains how amicus are treated by the DSM? This article empirically maps amici in all disputes from 1998 (after amicus access was first recognized) through 2014, arguing that amicus access is conditioned by a combination of political and legal constraints faced by the WTO panels and AB. In particular, whether the content of an amicus is considered hinges on it having the endorsement of a disputing party and whether its consideration interferes with the WTO DSM's reputation for coherence. In all, these findings have implications for the debate over whether amicus curiae access is good or bad news for the WTO and non-state actor involvement.

The dispute settlement system of the World Trade Organization (WTO) knew considerable success in its early years, being described as the WTO's crown jewel. In recent years, the jewel has become tarnished. Its principal actor – the Appellate Body – is no longer functioning, and the practice of the membership has been to appeal almost all new panel reports, thereby consigning them to a legal limbo from which they seem unlikely to ever emerge. This paper briefly reviews the record of the WTO dispute settlement system, considers the problems that led to its current state and evaluates various proposals that have been made to reinvigorate the system.

Good evening. I am delighted to be back here this evening among so many oldfriends.

The legal-economic implications of how WTO members apply an import-restricting safeguard measure become more complex in light of the increasing web of trade concessions undertaken through their preferential trade agreements (PTAs) in addition to their WTO commitments. This paper examines a number of complex issues that arose in the WTO litigation between five new PTA partners through the Dominican Republic–Safeguard Measures disputes. First, we highlight the difficulties in assessing the extent to which safeguards imposed following a PTA are the result of PTA concessions relative to developments that pre-date or are otherwise unrelated to the PTA. Second, we examine how the WTO Panel resolved a number of previously unanswered questions in the WTO's safeguards jurisprudence that arose in these cases. We suggest that the Panel rightly foreclosed a number of potentially dubious practices that WTO members might otherwise have pursued when using safeguards to circumvent trade concessions. Third, we identify how safeguard-related provisions within a PTA may give rise to constraints that subsequently affect how a country may apply safeguards available under the WTO Agreements, and we describe some implications for PTA design and negotiation. Finally, we analyze the broader implications that arise from the interplay of PTAs, safeguards, and dispute settlement in light of the availability of both relatively substitutable policy instruments and dispute resolution forums.

In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a ‘legitimate regulatory distinction’. In its recent compliance decision in the US–Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the US dolphin-safe tuna-labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB's application of the notion of risk-based regulation in the US–Tuna II dispute and finds the AB's reasoning lacking in coherence. Although risk analysis and calibration can in principle play useful roles in TBT cases, the AB needs to provide more explicit and careful guidance to WTO members and to panels to avoid the kind of ad hoc decision-making exhibited throughout the US–Tuna II dispute.

Every third dispute brought to the WTO and not withdrawn early is settled amicably through a mutually agreed solution (MAS). This includes high-profile and long-standing WTO disputes such as EC–Bananas or Softwood Lumber. By offering a negotiated solution to hard cases, MAS have added stability to the multilateral trading system. MAS, however, also raise concerns. Settlements favour the instant resolution of disputes, but may conflict with third party interests and collective stakes. Where WTO members use their MAS to contract out of WTO law (‘WTO+’/‘WTO–’MAS), the multilateral trading system may be at risk. In addition, new forms of bilateral (interim-)settlements not foreseen in the DSU have recently emerged which currently escape multilateral disciplines. This article assesses how well the DSU balances the competing interests involved in amicable settlements, preserving the contractual flexibility of disputants while safeguarding multilateral interests. Contributing to current DSU reform debates, the article rejects the need for greater MAS enforceability, endorses the strengthening of procedural and substantive safeguards protecting collective stakeholders in settlements, and calls for new DSU disciplines on interim-settlements.

Beyond removing restrictions, trade reform in Latin American in the 1980s and 1990s was in significant part an attempt to change the domestic politics of trade and to reformulate the culture of policy management by introducing procedural characteristics that WTO trade remedy rules advance. This paper examines how trade reform in Peru and Argentina has gone since the reforms of the 1990s. Peru provides a valuable example of sustaining reforms. Leaders have used negotiations and other international instruments to disseminate among Peruvians a positive vision of Peru in the international economy, and to extend the application of WTO-based governance principles. Peru has introduced few new restrictions and all of them have been through WTO-sanctioned policy instruments. Argentina, on the other hand, has introduced multiple restrictions, through procedures that eschew WTO governance principles. Moreover, leaders there have returned trade politics to the dependencia philosophy that sees the international economy as an exploitive environment.The paper brings out the weakness of international obligations to limit Argentina's return to import substitution and the pains at which Peru has gone to maintain the management of its economy within the same rules that Argentina has so easily violated. To have commercial value, the GATT/WTO principle that members apply only approved methods of trade control must have operational expression in national institutions.

The last ten years have seen an upsurge in interest in the nexus of trade and environmental policies. In part this reflects the need to deal with major global pollution problems, and in part a concern that globalization may have adverse impacts on the environment. Environmentalists worry that globalization may trigger a race-to-the-bottom in environmental standards. While they would like to see upward harmonization in environmental standards, they are sceptical about the ability of supra-national agencies to achieve this. Industrialists also raise concerns about the need for a ‘level playing field’ in environmental regulations because of fears about the impact of environmental regulations on competitiveness. However, developing countries question whether disputes over differences in environmental regulations simply reflect a covert form of ‘green protectionism’. In this paper we review what light recent developments in economic analysis (conceptual and empirical) can shed on these concerns. We quickly summarize conventional trade models in which government bodies have perfect information and are welfare maximizers, and show that this analysis does not provide much support for the concerns or proposed policy recommendations. We then turn to models of political economy and imperfect information to see whether they provide a better explanation for the concerns and policy recommendations.

The Appellate Body decision in the steel dispute is the latest in a line of unsatisfactory decisions in the safeguards area. The problem stems from the fact that the treaty text regarding the preconditions for the use of safeguard measures is badly deficient. The Appellate Body with its usual emphasis on textualism has done little to resolve the puzzles that the text creates. WTO members are left with little guidance about the proper use of safeguards beyond some confusing and sometimes incoherent standards. We review these issues as they have arisen in prior decisions, and then discuss the details of the steel dispute. Our emphasis there is on the panel decision more than the Appellate Body report, as the latter breaks little new ground.

This paper investigates whether the Pesticides Initiative Program has significantly affected the export performance of Senegal's horticulture industry. We apply two main microeconometric techniques, difference-in-differences and matching difference-in-differences, to identify the effect of the Pesticides Initiative Program on exports of fresh fruits and vegetables. We use a unique firm-level dataset containing data on sales, employment, and exports by product and destination markets, as well as firm enrolment year, over 2000–2008. The results suggest that while the program had no significant effect on exports pooled over all products and destinations, it had a positive effect when considering fresh fruits and vegetables exports to the European Union.

Accession to the World Trade Organization (WTO) is unlike accession to other global organizations. It is extremely demanding on applicant countries, time consuming and essentially power- rather than rule-based. This article argues that existing WTO members select themselves into the Working Party of applicant countries, the body which determines the timing and conditions of accession, in order to have the option to strategically delay membership by the applicant and/or extract concessions from it. Existing members will select themselves into a specific Working Party if their own trade interests are strongly affected, which will be the case if the existing member's bilateral trade with the applicant country forms a large share of its income, unless both countries already have a preferential trade agreement (PTA) between them. Trade interests are also strongly affected if the existing member competes with the applicant in terms of export product and market structure. Conversely, where both member and applicant have more PTAs with third countries of large economic size in common, potential accession will affect the member's trade interests less. An empirical analysis of Working Party membership since 1968 estimates to what extent these three different facets of trade interests are substantively important determinants of Working Party composition.

In recent years, China has enacted export restrictions on a range of minerals and other raw materials. They include export quotas, export duties, export licenses, and other administrative actions. Although such export restrictions have already been found to be inconsistent with China's WTO obligations, the practice persists. This article advances an explanation for why this is the case. It argues that the problem lies with the lack of retrospective remedies in WTO dispute settlement. Consequently, China is able to breach its WTO obligations temporarily with minimal consequence. Although such restrictions may have negative consequences for upstream extraction firms, China is able to implement the restrictions because several upstream firms are state-owned enterprises. As a result, China is able to utilize export restrictions on minerals and other raw materials effectively to foster the development of strategic emerging industries downstream. Given existing negotiating standoffs and domestic political constraints, this article suggests that it is unlikely that any potential WTO legal reforms will be enacted any time soon to address this problem.

This Article provides an anatomy of Chinese state-owned enterprises (SOEs) by unpacking their various relations with different types of state organs. It shows that Chinese SOEs are embedded in a network composed of dense and complex links with the state. Shareholding ties, albeit important, are only one of the many relations with the state. This network perspective provides a rather comprehensive overview of the basic architecture of China's state-owned sector. It illustrates important governance institutions that are unobservable from the laws on the book and distinctive from international standards. It clarifies some SOE behaviors that appear puzzling when taking the individual firm as the unit of analysis. It also raises challenging questions on various areas of law in the context of globalization.

Discontentment is growing such that governments, and notably that of China, are increasingly providing subsidies to companies outside their jurisdiction, ‘buying their way’ into other countries’ markets and undermining fair competition therein as they do so. In response, the European Union recently published a proposal to tackle such foreign subsidization in its own market. This article asks whether foreign subsidies can instead be addressed under the existing rules of the World Trade Organization, and, if not, whether those rules allow States to take matters into their own hands and act unilaterally. The authors shed light on these issues and provide preliminary guidance on how to design a response to foreign subsidization which is consistent with international trade law.

Trade-restrictiveness is a familiar concept across various provisions and agreements of the World Trade Organization (WTO), but its precise meaning remains vague. In many WTO disputes, the existence or degree of trade-restrictiveness of a challenged measure is simply assumed or addressed in a few brief sentences. Yet whether a measure is more trade-restrictive than necessary, or more trade-restrictive than a proposed alternative measure, is crucial to the legality of a range of measures currently in place around the world, some under challenge in the WTO. A careful analysis of the existing case law and treaty text – focusing on Article 2.2 of the Agreement on Technical Barriers to Trade and the general exceptions in the General Agreement on Tariffs and Trade 1994 and the General Agreement on Trade in Services – demonstrates that while the existence of discrimination is likely to restrict trade, discrimination is not necessary to establish trade-restrictiveness, which also necessarily arises from direct barriers to market access such as import bans. In the absence of an explicit barrier to imports, a WTO panel is likely to focus on the extent to which a challenged measure negatively affects the competitive opportunities of imported products vis-à-vis domestic products.

The paper deals with regional policies towards temporary labour migration (or the movement of natural persons) with specific reference to the liberalization of trade in services. The paper deals with policies towards labour migration, and progress in related Mode 4 negotiations within the GATS framework, among the Association of Southeast Asian Nations, or ASEAN. It finds that unilateral, national policies rather than regional or multilateral commitments dominate in policies towards temporary foreign workers. Despite advances on administrative issues, little progress has been made towards achieving ‘GATS-Plus’ outcomes, partly because of the lack of a strong political commitment among member countries to liberalizing the entry of foreign workers and partly because of real or imagined shortcomings in the ‘architecture’ for Mode 4 negotiations. Weak political will has led to relatively shallow commitments with a focus on skilled workers over unskilled migrants. With regard to architectural issues, we draw attention to the weaknesses of the ‘positive list’ approach in services trade negotiations, specifically with regard to the case of labour migration. However, the interpretation of the relationship between different modes of supply has also tended to inhibit regional negotiations for Mode 4. In particular, we point to the neglect of the potential importance of independent suppliers of services. It is concluded that the ASEAN countries need to place more emphasis on regional priorities and problems in seeking more open worker flows within the region.