Private standards have increasingly become a contentious issue in the multilateral trading system. The ever increasing number of sector-specific standards developed by businesses, in particular in the food market, may have significant implications for developing countries in terms of market access. Some countries see private food standards as a particular form of non-tariff barriers. The World Trade Organization (WTO) deals with non-tariff barriers in the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) and in the Agreement on Technical Barriers to Trade (TBT Agreement). This paper examines to what extent these agreements cover private standards, as they were originally intended to regulate standard-setting by public authorities. We find that there is an important difference between the SPS Agreement and the TBT Agreement in that the drafters of the latter realized the importance of the private sector in standard-setting. Finally, we discuss whether a ‘Code of Good Practice for the Preparation, Adoption and Application of Standards’, similar to that under the TBT Agreement, could be adopted under the SPS Agreement.

This paper investigates how the Appellate Body has coped with its precarious position in the WTO. It must rely on decentralized enforcement of its rulings; interpret new regulatory rules that are complex and contested; hear and resolve all disputes; and deal with governments litigating issues on which they fail to achieve consensus in negotiations. In this setting, the Appellate Body cannot easily promote both its reputation for coherence and its record of compliance – the dual underpinnings of its perceived authority. In response, it has crafted an activist and politically sophisticated approach to several procedural issues. Despite underlying disagreements among member states, the Appellate Body has seized chances to enact procedural reforms that encourage consensus rulings, improve its access to information, and expand its judicial discretion. While no guarantee of success, these procedures should enhance the Appellate Body's ability to reduce the intrinsic political risks of WTO adjudication.

We analyze the extent to which the EU-15 and 16 transition economies used the WTO General Agreement on Trade in Services (GATS) to commit to service sector policy reforms. GATS commitments are compared with the evolution of actual policy stances over time. While there is substantial variance across transition economies on both actual policies and GATS commitments, we find an inverse relationship between the depth of GATS commitments and the ‘quality’ of actual services policies as assessed by the private sector. In part this can be explained by the fact that the prospect of EU accession makes GATS less relevant as a commitment device for a subset of transition economies. However, for many of the non-EU accession candidates the WTO seems to be a weak commitment device. One explanation is that the small size of the markets concerned generates weak external enforcement incentives. Our findings suggest greater collective investment by WTO members in monitoring and transparency is needed to increase the benefits of WTO membership to small countries.

EC–Seal Products has been characterized as a contest between local moral preferences about animal welfare, on the one hand, and global commitments to trade disciplines on the other. But that description fails to take into account the development of international legal norms concerning animal welfare and their relevance to this case, as well as to other potential disputes involving animal welfare measures that affect trade. The international dimension of animal welfare implicates two ongoing debates in international trade law: what the relationship should be between WTO law and general international law, and the extent to which ‘public morals’ under Article XX(a) of GATT can be locally defined or need to be internationally shared. This Article examines the argument that there is a general principle of international law concerning animal welfare, and analyzes the role that international norms regarding animal welfare should play in EC–Seal Products.

This paper examines issues that came before the Appellate Body in two disputes, US–Zeroing (EC) and the US–Zeroing (Japan). The core issue in both the disputes involves the US Department of Commerce's practice of zeroing. The scope of the claims in both cases was considerably broader than in the previous WTO disputes involving zeroing. The two arguments in support of the practice were that (a) the practice of zeroing has been a standard administrative practice for many years and (b) the Antidumping Agreement does not clearly prohibit it and hence deference must be given to national authorities. While, the Appellate Body was arguably correct in prohibiting the use of zeroing under the main methods of Article 2.4.2 AD Agreement as well as in various reviews, we consider that it overreached in considering zeroing to be in violation of Article 2.4 AD Agreement and possibly as inconsistent with Article 2.4.2, exceptional method. Finally, while the AB found zeroing in reviews violated Article 2.4.2 AD Agreement, we believe it would have been preferable for the AB to have limited its findings of inconsistency to Article 9.3 AD Agreement.

State-owned enterprises (SOEs) are a major force in the Chinese economy and a growing presence in international trade and investment. The challenge to the WTO legal regime is commercial, given the size of SOEs and their share of Chinese output, and political, given worries that trade and investment by SOEs may be driven by public policy goals. And both challenges may be exacerbated by the murky world of Chinese SOEs. In this article, I first review whether Chinese SOEs are a problem for the WTO, and whether more sunshine on their operations might be a useful discipline. I then ask what we know about SOEs inside the WTO, including in the Trade Policy Review Mechanism. Since the answer is, not much, I consider whether mega-regional trade negotiations offer a better approach. My answer being negative, I finally consider whether an attempt to negotiate a WTO Reference Paper on SOEs might help. I conclude that transparency is likely to be a better discipline on the spillovers associated with SOEs than a search for binding rules, while also helping everyone better understand the efficiency effects.

This article explores the concept of ‘regulatory convergence’ in the context of the evolving literature on legal convergence and divergence. Such a concept has emerged as an overarching horizontal discipline in the latest generation of preferential trade agreements and aims to reduce unnecessary regulatory incompatibilities between countries in order to facilitate cross-border trade and investment.

Differing approaches to regulatory convergence found in recently concluded PTAs, or are currently under negotiation, are examined, with a special focus on the ‘regulatory cooperation’ approach embedded in CETA, the path of ‘regulatory improvement’ taken by members of the Pacific Alliance, and the ‘regulatory coherence’ track included in the TPP. We also refer to the TTIP negotiations conducted between the EU and the US.

The article offers a broad understanding of the different ways in which regulatory convergence is implemented across PTAs, and the legal complexities resulting from the ambiguity of the concept. It further describes the scope and effects of the different mechanisms used to achieve regulatory convergence, on both substantive and procedural matters.

This article's subject is the implications that consensus/unanimity and majority voting might have for the World Trade Organization's (WTO) decision-making system. First it looks at some consequences that replacing the consensus rule with majority voting might have for the WTO, including justice concerns, legitimacy, homogeneity of WTO membership, and international enforcement. Second, it summarizes some solutions found in the European Union (EU) for coping with unanimity and majority rule, including constructive abstention, reallocation of contractual responsibilities, and the Luxembourg compromise. Finally, it considers some reform options for the WTO and offers some conclusions, namely expanding majority voting on certain areas only, redefining competences, multi-speed proposals (rethinking the single undertaking, constructive abstention, and the scheduling approach), redefining consensus, combining consensus and majority voting, and issuing interpretations.

Most-favored-nation treatment, i.e., nondiscrimination among trading partners, is a fundamental principle of the GATT/WTO system. The WTO Agreement on Safeguards has thus been seen as encouraging use of a preferred form of contingent protection relative to antidumping and other inherently discriminatory measures. In practice, however, safeguard protection may also incorporate discriminatory elements. This paper focuses on three ways that policies conforming to the Agreement on Safeguards may nonetheless discriminate explicitly or implicitly among trading partners. First, the form of the safeguard policy matters: quantitative restrictions discriminate among foreign suppliers by preserving historical market shares more than a safeguard implemented as a tariff. Second, safeguard measures discriminate against faster-growing exporters and new entrants in import markets. Third, formal exemptions for partners in preferential trade agreements and for small developing-country suppliers allow these countries to gain market share at the expense of non-exempted exporters. We provide evidence of these discriminatory effects in actual cases of safeguard protection.

It is a well-established theoretical result that the trade policy of a large country can directly affect its own and other countries' welfares by affecting international goods' prices. However, there exist very few empirical studies that analyze the effect of trade policy on international prices. With detailed data on unit values and tariffs, I show how policy actions in Europe disrupted the global shrimp market in a non-negligible way and set the stage for the anti-dumping case in the United States. The loss of Thailand's preferential trade status in Europe and the international differences in food-safety standards during the antibiotics crisis shifted especially Thai, Vietnamese, and Chinese shrimp exports away from Europe toward the United States in the late 1990s and early 2000s. I document how those shifting markets have decreased US prices for shrimp significantly compared to those in Europe.

Food security emerged as a major source of political deadlock in the WTO Doha Round negotiations. Concerns about food security only intensified at the WTO following the 2008 Global Food Crisis, with the Bali and Nairobi Ministerials revealing polarized views between the US and India on the financing of public food stockholding. These ‘food fights’ at the WTO have attracted significant international media, civil society, and scholarly attention. In this article, I argue that inter-state disagreement on food security is not new or specific to the Doha Round but instead has been a recurrent phenomenon in the multilateral trade system for decades. Employing an historical approach, I show that food security has repeatedly been an item of negotiation in successive GATT negotiating rounds and has been steadily codified in international trade law over time. Today, food security is deeply integrated into the rules of the trade regime, making the WTO an important yet largely unacknowledged institution in global food security governance.

The creation of the World Trade Organization (WTO)'s disputesettlement system (DSS) in 1995 remains one of the most puzzling outcomes ininternational politics and international law in the 1990s. We provide a newexplanation for this move to law. We argue that important contextual variablesof the negotiations have been largely overlooked by existing explanations,namely ‘experiential learning’. While negotiations tocreate institutions are characterized by uncertainty about distributionaleffects, negotiators will look for clues that moderate uncertainty. In thecontext of the Uruguay Round negotiations, a significant amount of informationwas drawn from actual practice and experience with the existing GeneralAgreement on Tariffs and Trade (GATT) dispute settlement system. In short,experience gained with judicial institutions and outcomes is important tounderstand the key results of the negotiations: a legalization leap, morespecifically a judicialization of the existing dispute settlement system. Wefocus on the two dominant actors in the negotiations (the United States and the(then) European Community) and provide evidence for our argument based on ananalysis of GATT cases in the 1980s, GATT documents, and in-depth interviewswith negotiators who participated in the negotiations.

The past seven years have seen a rapid proliferation of preferential trade agreements (PTAs) in the East Asian region. Many of the recently concluded PTAs are comprehensive in their coverage, seeking not only the dismantling of barriers to trade in goods but also the liberalization of trade in services. This paper offers an assessment of this recent wave of services agreements in East Asia, focusing on their liberalization content and their compliance with WTO rules on regional integration. It draws on a database in which the authors recorded the value added of PTA liberalization undertakings relative to pre-existing multilateral services commitments. Among other things, this database is used to empirically assess the effect of the scheduling approach on the depth and breadth of liberalization undertakings.

Using bilateral trade data on WTO disputes from 1995 to 2010 within the framework of multilateral trade, this paper empirically investigates whether legally winning a WTO dispute leads to actual trade gains. This study helps to illuminate the efficacy of the WTO dispute settlement system and to understand the role of the system as an institutional device for promoting multilateral trade liberalization. Assessing differential effects of the WTO dispute settlement rulings and the legal status of participants, this paper examines how trade gains are created and distributed among WTO members. Our empirical findings suggest that winning a legal dispute contributes to multilateral trade liberalization, not merely by rectifying trade problems for prevailing complainants but more so by providing better market access for all WTO members. This result reaffirms that the WTO dispute settlement system fulfills its purpose as a regulatory instrument for promoting multilateralism and market competition.

Many national governments around the world applied export restrictions in order to achieve domestic market stabilization during the 2007/8 world food price crisis. However, current literature says little about how these export restrictions interact with existing domestic support measures in jointly determining domestic market outcomes. This paper analyzes this interaction by providing a quantitative assessment on how increased spending on agricultural domestic support in China offset the negative effects on grain production caused by the country's export restrictions and how these two types of measures jointly moderated rises of domestic grain prices. In particular, domestic and trade measures on key agricultural inputs such as fertilizers are shown to contribute significantly to expand grain outputs and reduce domestic market prices. While the short-term goal in stabilizing domestic grain prices was achieved through these measures, large fiscal and efficiency costs were incurred, especially considering how the short-term export restrictions seemingly necessitated the extra spending on input-based domestic subsidies. We also demonstrate that the costs to China and the rest of the world of these complicated policy interventions may be partially avoidable with a simpler and less distorting instrument.

It is a truth universally acknowledged that every ambitious twenty-first century trade agreement is in want of a chapter on electronic commerce. One of the most politically sensitive and technically challenging issues is personal privacy, including cross-border transfer of information by electronic means, use and location of computing facilities, and personal information protection. States are learning to solve the problem of state responsibility for something that does not respect their borders while still allowing twenty-first century commerce to develop. A comparison of the Canada–European Union Comprehensive Economic and Trade Agreement (CETA) and the Trans-Pacific Partnership (TPP) allows us to see the evolution of the issues thought necessary for an e-commerce chapter, since both include Canada, and to see the differing priorities of the US and the EU, since they are each signatory to one of the agreements, but not of the other. I conclude by seeking generalizations about why we see a mix of aspirational and obligatory provisions in free trade agreements. I suggest that the reasons are that governments are learning how to work with each other in a new domain, and learning about the trade implications of these issues.

The Doha Round must be concluded not because it will produce dramatic liberalization but because it will create greater security of market access. Its conclusion would strengthen, symbolically and substantively, the WTO's valuable role in restraining protectionism. What is on the table would constrain the scope for tariff protection in all goods, ban agricultural export subsidies in the industrial countries and sharply reduce the scope for distorting domestic support – by 70% in the EU and 60% in the US. Average farm tariffs that exporters face would fall to 12% (from 14.5%) and the tariffs on exports of manufactures to less than 2.5% (from about 3%). There are also environmental benefits to be captured, in particular disciplining the use of subsidies that encourage over-fishing and lowering tariffs on technologies that can help mitigate global warming. An agreement to facilitate trade by cutting red tape will further expand trade opportunities. Greater market access for the least-developed countries will result from the ‘duty free and quota free’ proposal and their ability to take advantage of new opportunities will be enhanced by the Doha-related ‘aid for trade’ initiative. Finally, concluding Doha would create space for multilateral cooperation on critical policy matters that lie outside the Doha Agenda, most urgently the trade policy implications of climate change mitigation.

The European Union (EU) often conditions preferential access to its market on compliance with Non-Trade Policy Objectives (NTPOs), including human rights and labor and environmental standards. In this paper, we first systematically document the coverage of NTPOs across the main tools of EU trade policy: its (association and non-association) trade agreements and Generalized System of Preferences (GSP) programs. We then discuss the extent to which the EU can use these tools as a ‘carrot-and-stick’ mechanism to promote NTPOs in trading partners. We argue that, within trade agreements, the EU has limited scope to extend or restrict tariff preferences to ‘reward good behavior’ or ‘punish bad behavior’ on NTPOs, partly because multilateral rules require members to eliminate tariffs on substantially all trade. By contrast, GSP preferences are granted on a unilateral basis, and can thus more easily be extended or limited, depending on compliance with NTPOs. Our analysis also suggests that the commercial interests of the EU inhibit the full pursuit of NTPOs in its trade agreements and GSP programs.