There is no doubt that trade and climate policies can be mutually destructive. But there are three strong reasons to suggest that they can also be mutually supportive: they have a common problem, common foes, and common friends. Mutual support would be much stronger if the world regimes for these two policies shared a few common principles. The climate community should feel at ease with the broad WTO principles of ‘national treatment’ and ‘most-favoured nation’, and rely on them in building its own treaty and institutions. The trade community should grasp the opportunity to benefit from the better disciplines on adjustment policies that it is hoped the climate community will design.

These conclusions should put the many pending problems into a more positive perspective, and persuade negotiators to find pragmatic compromises, as was the case with the GATT. Using this perspective, the paper focuses on a few key issues, such as the definition of carbon border taxes and the reasons to ban carbon tariffs. Other cases of mutual support are examined. For instance, the climate community should not repeat the mistakes of the world trade regime in dealing with the developing and least developed countries.

This article aims to account for the variation in the time it takes for WTO Members to bring compliance following adverse panel rulings. It seeks to answer the question: under what conditions do defendants swiftly implement adverse rulings of WTO panels? I demonstrate that defendants are more likely to comply without delay when the targeted measures involve firms that are integrated into regional and global value chains. When a dispute touches upon the interests of these firms and targets import-restricting measures, they are triggered to mobilize and press for compliance because they rely on foreign imports. In effect, the mobilization of these firms changes the domestic political conditions in favor of timely implementation. I show the plausibility of my argument in a comparative design with four case studies in which the US and Canada acted as defendants in WTO disputes. I control for a number of political factors and also consider legal sources of variation – i.e. the complexity of the form of implementation – that may impact WTO Members’ record of compliance.

The international investment agreement regime (IIA Regime) is composed of thousands of IIAs and a system of investor–state dispute settlement. Historically, high-income developing countries (HIDCs) were part of the global South and thus ‘hosts’ of foreign direct investment (FDI). Increasingly, however, these countries have become ‘home’ to investors who are hosted and exposed to political risk abroad. Representing both home and host country interests simultaneously, how do HIDCs balance these crosscutting pressures? We argue that as the position of an HIDC shifts from mostly a recipient towards a sender of significant amounts of FDI, it will be more willing to provide protection to foreign investors at the expense of state regulatory space in its IIAs, thereby increasing its exposure to the IIA Regime. Employing an original data set that measures this exposure for sixty-four HIDCs over six decades, we first show that the degree of HIDC exposure to the IIA Regime varies a great deal. Using a general method of moments (GMM) analysis and controlling for a host of confounding factors, we demonstrate that, indeed, higher levels of FDI outflows as a share of the national economy result in greater exposure to the IIA Regime.

Based on the notion that the needs of developing countries are substantially different from those of developed countries, the principle of special and differential treatment (S&D) in the World Trade Organization (WTO) allows a certain degree of discrimination in favour of developing countries. This article considers the potential of this principle in resolving disputes within the WTO. S&D developed in the General Agreement on Tariffs and Trade (GATT) of 1947 and is today reflected in a series of provisions in various WTO agreements. The meaning of S&D as a broader principle could assist in interpreting such provisions. In addition, the principle of S&D could conceivably be used as part of the inherent jurisdiction of Panels and the Appellate Body in connection with procedural aspects of dispute settlement. However, the article concludes that, due to the incoherence of S&D, as well as the difficulties involved in distinguishing between developing countries and in advancing their interests as an amorphous group, S&D is presently of limited value as an independent principle in WTO dispute settlement.

This dispute between the European Communities and the United States originated when the United States amended its copyright law in a way that nullified and impaired certain benefits promised to the European Communities under the Agreement on Trade Related Aspects of Intellectual Property (TRIPs). Article 9.1 of TRIPs requires all WTO members to comply with Articles 1 through 21 of the Berne Convention of 1971. Among the provisions of the Berne Convention thus incorporated into the TRIPs Agreement is one that grants to authors of literary and artistic works the exclusive right to authorize ‘the public communication by loudspeaker or any analogous instrument transmitting, by signs, sounds or images, the broadcast of the work’, and another that grants to authors of dramatic and musical works the exclusive right to authorize ‘any communication to the public of the performance of these works’.

There has been increasing litigation in the WTO on environmental issues in recent years, much of it about fishing. Two cases, Chile–Swordfish and Faroes–Herring, brought to light the potential for conflict between trade and fisheries law through the imposition of port state measures by WTO members to prevent illegal, unreported, and unregulated (IUU) fishing, although both cases were settled before reaching Panel stage. Port state measures aim to combat IUU fishing by allowing countries to close their ports to IUU fish. This includes using trade measures and trade-related measures, such as import bans and transshipment bans, which may violate WTO law. The potential for conflict is even more acute now that the Port State Measures Agreement (PSMA) has come into force. This paper takes as its study Faroes–Herring, where the Faroes challenged certain EU regulations aimed at preventing IUU fishing through the use of port state measures. It examines whether these regulations comply with WTO law, and makes recommendations as to how a Panel or Appellate Body can resolve this type of dispute. Specifically, it focuses on ways in which international fisheries law can be incorporated in this process to avoid a conflict between international trade and fisheries law.

This paper examines the specific ways in which the provision of emissions permits by governments in carbon trading schemes, interacts with, and challenges, the disciplines on subsidies in the WTO Agreement on Subsidies and Countervailing Measures. It will argue that the case of emissions permits gives rise to two key challenges. First, it highlights the need for a resolution on the issue of the characterization of intangible goods under the SCM Agreement, and the importance this has for the calculation of benefit and hence the correct application of SCM disciplines. Secondly, when applied to emissions permits, the SCM Agreement produces a result that heavily favours the complaining Member at the expense of ‘distributive justice’. This is compounded by the current lack of directly applicable exceptions for subsidies directed at legitimate public policy goals. Fundamentally, this will affect the potential cost and continuing viability of national emissions trading schemes and further challenge the environmental credentials of the WTO.

This paper analyzes Brazil's WTO challenge to the methods undertaken by the United States in calculating anti-dumping duties in administrative reviews and other investigations of Brazilian orange juice. The dispute resulted in a Panel ruling that conforms with earlier Appellate Body decisions outlawing the use of ‘weighted average to transaction’ zeroing in such reviews. However, we note that the Panel's stance was driven largely from a desire to preserve ‘stability and predictability’ within the system, suggesting a practical recognition of the shadow of past Appellate Body decisions on the same legal question. In addition, we argue that to understand fully the effects of zeroing, it is important to account for the underlying reasons behind observed price changes in the market. We show that zeroing is more likely to convert a negative dumping determination into a positive one when price changes are driven by variations in demand relative to when they are driven by variations in the cost of exporting. In the present case, Brazilian exporters of orange juice experienced an increase in (residual) demand for their product since, by reducing the local supply of round oranges, adverse weather conditions in the United States made it difficult for US orange-juice producers to meet local demand.

According to traditional constitutional theory, foreign affairs is the prerogative of the executive. However, globalisation and the dual process of internationalisation of domestic affairs and domestification of international affairs imply that the days when foreign policy was the exclusive domain of the executive are over. The article explores the effects of globalisation on the role of Parliament in international relations in general, and WTO negotiations specifically, using the Norwegian Parliament as an illustration. Three findings are presented. First, at the international level attempts are made to develop a ‘parliamentary dimension of the WTO’. Second, at the national level the Norwegian Parliament has become more actively engaged in international relations. And, third, the Norwegian Parliament plays an important role in the processes of defining national interests and determining national negotiation positions in the WTO, especially with regard to possible trade-offs between the offensive interests of fisheries and the defensive interests of agriculture.

One goal that both developed and developing countries share is to increase their export earnings. To do this, countries sometimes resort to various export promotion schemes or request ‘special and differential treatment’ for their exports. However, countries have not fully embraced the notion that their own import tariffs act as a tax on their exports. That is, import protection frustrates their goal of increasing exports. This paper presents quantitative estimates of the extent to which import tariffs discourage exports. The results show that for some countries the bias imparted by tariffs is substantial. Therefore, reducing import tariffs is one way to improve export incentives.

This paper provides a legal–economic analysis of the unappealed WTO Panel Report in China – Certain Measures Affecting Electronic Payment Services (WT/DS413/R). The core issue was whether China's measures that resulted in there being only one dominant supplier of electronic payment services (EPS) in China violated the specific commitments made by China under the GATS. The panel ruled that the measures did not violate China's market access commitments because there were no explicit limitations on the entry of foreign suppliers, but that the measures were inconsistent with China's national treatment commitments in that they modified the conditions of competition in favour of domestic suppliers. This case illustrates the complexity in interpreting WTO Members’ commitments under the GATS.

The dispute Argentina-Measures Affecting the Importation of Goods concerns a series of measures imposed by Argentine authorities on economic operators as a condition for obtaining import licenses. These measures were introduced with the goal of advancing the Argentine government's stated policies of re-industrialization, import substitution, and elimination of trade balance deficits. From a legal point of view, the least interesting feature of the dispute was the substantive compatibility of these measures with Article XI:1 GATT as they clearly constituted import restrictions. Identifying and classifying the measures involved, however, proved more challenging: based on vague policy guidelines, devoid of any legal basis, and consisting largely of wholly discretionary ad hoc action by the authorities, clouded in confidential obscurity, the measures escaped familiar categories and distinctions of WTO law. From an economic perspective, although Argentina's measures appear to have had no impact on its overall imports, they imposed large costs on foreign companies, as well as on Argentine importers and consumers.

The suspended provisions of Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTTP will not substantially affect the Trans-Pacific Partnership (TPP) Chapter 17 on State-owned enterprises (SOEs). As a consequence, the original TPP scheme remains an important treaty model and poses complex questions notwithstanding a growing literature. This article discusses TPP but unlike current writings which focus on comparative treaty methods of SOE regulation, we focus on how TPP/CPTPP will actually operate, paying attention to how its framers have defined an SOE not least in how they have viewed complex crossholdings, excluded non-profits, and preserved a role for State monopolies. Our answers differ from some of the existing literature – particularly on complex cross-holdings. We also provide detailed illustrations of how TPP's non-discrimination, commercial basis, and non-commercial assistance rules might work and comment on the chances of a rule cascade triggered by TPP, particularly in the current state of heightened Sino-American rivalry and allegations of State control in China's economy.

Efforts to ensure that intellectual property rights are respected and protected world-wide have met increasing resistance by critics who see extreme imbalances in the costs and benefits of implementing stronger intellectual property protection. The WTO's Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) attracts particular criticism as an enforceable multilateral embodiment of these efforts. While few disagree that developed countries stand to benefit more in the short term from TRIPS implementation than developing countries, precisely estimating associated costs and benefits is challenging. This paper comments on an approach to estimating the ‘indirect’ costs of implementing TRIPS proposed by McCalman (2001) and argues that the approach overestimates the costs born by developing countries. Specifically, this overestimation is due primarily to an inadequate representation of the TRIPS Agreement and a counterfactual assumption that countries would not have strengthened their intellectual property policies in the absence of the TRIPS Agreement.

This article, based on a lecture given at the inauguration ceremony for the new Advisory Centre on WTO Law, describes the broader world trading landscape into which this new Centre emerges. Taking into account the possible implications of the events on September 11, this article provides a brief analysis of the current trade policy climate, asserting the necessity of institutions for the successful functioning of markets. After a short institutional history of the GATT/WTO, the author describes the importance of institutional rules, treaty text, and practice for the success of the WTO and presents the current debate over what the scope of this institution has been, is now, and could be in the future – the debate over which important issues should be taken under the WTO umbrella, and, further, which issues are appropriate to send to the Dispute Settlement System. Finally, this article illustrates the challenges facing this dispute settlement system, proposals for reform, and the vital role that the new Advisory Centre may be able to play in resolving some of these challenges.

In anti-dumping procedures, the EU authorities have adjusted State-distorted input costs in the constructed normal value to market benchmarks. This methodology increases the amount of anti-dumping duties and hence import barriers to foreign goods produced with low-priced raw materials. Such cost adjustments are based on certain EU anti-dumping provisions that implement corresponding World Trade Organization (WTO) rules under which the cost of input must be derived, as a principle, from the records of target companies in the exporting country if those records, inter alia, reasonably reflect production costs of the product under investigation. But in the case of input costs distorted by the government, the EU authorities have typically deviated from this principle relying on alternative sources on the grounds of unreasonable costs. While the EU jurisprudence has so far been generally lenient towards this methodology as applied to significant distortions in the raw material (upstream) market, the recent WTO appellate ruling in EU–Biodiesel is rather negative on its use in the presence of the valid domestic records. This article examines the EU anti-dumping practice as reviewed in both EU and WTO judicial proceedings and discusses some legislative reforming options under both regimes. It concludes that the WTO anti-dumping rules should be amended to allow market-oriented cost adjustments in the normal value, on the one hand, and ensure parallel export price adjustments, on the other.

By acting as a trader, a government may influence the direction of international trade through its purchases and sales decisions without resort to other more direct means of trade regulation. The GATT recognizes that governments may choose to participate in international commerce in competition with private firms, but it does not leave them with a free hand when it comes to carrying out trading operations. The core rules regulating a State's trading activities are found in Article XVII and related provisions of the GATT. In the 70 years since their adoption, developments in both the GATT 1947 and the WTO have delineated a set of relatively limited disciplines rooted in the principle of non-discrimination, raising doubts about their effectiveness to address the kinds of problems caused by ‘State trading’ today. It remains true, however, that while State trading enterprises continue to operate across the world, and fundamental questions about the full reach and scope of the existing disciplines endure, opportunities to clarify their role in the modern trading system may well arise in the future practice of WTO Members.

This arbitration on the level of countermeasures, pursuant to Dispute Settlement Understanding (DSU) 22.6, originates from findings against the United States with respect to a provision of the 1916 Anti-Dumping Act, which permits a private cause of action for treble damages against an alleged dumping importer or producer where the dumping meets certain criteria, notably including a predatory intention. An unusual feature of this case is that, apparently, the provision in question had not yet been used against the EC, the complainant. In any case, the provision in question was found to be in violation of the WTO Anti-Dumping Agreement, both because it would impose measures on dumping other than and in addition to anti-dumping duties, and because in so doing the procedural requirements of the Anti-Dumping Agreement would not be followed.

This study addresses the disputes brought to the World Trade Organization (WTO) by the European Communities and the United States concerning certain Indian measures affecting the importation of automobiles and components in the form of “completely knocked down” (CKD) and “semi-knocked down” (SKD) kits. The measures in question originated during a time when India employed extensive import licensing requirements, ostensibly for balance of payments purposes. India’s broad licensing regime was challenged in 1997 by the European Communities and the United States, resulting in a settlement with the European Communities and a ruling in favor of the United States pursuant to which India agreed to abolish its import licensing system. Some restrictions in the automotive sector remained, however,which became the subject of this proceeding.

After not applying countervailing duty (CVD) law against non-market economies (NMEs) for two decades, the United States opened a CVD investigation against China in 2006. After extensive litigation, a US appeals court ruled that it was illegal to apply CVD law to NMEs. While that ruling was being appealed, the US Congress passed legislation stipulating that the application of CVD law to NMEs starting in 2006 was legal. China challenged this legislation at the WTO. The dispute resulted in a ruling that left open the possibility that the legislation violated the GATT, as well as a finding that the United States must investigate its application of countervailing and antidumping duties against China. This dispute has implications for a number of current WTO debates including: whether Appellate Body rulings create a binding precedent, whether the Appellate Body should have authority to remand cases, and what information should be required in panel requests.