The multilateral trading system has continuously evolved to take account of the changing nature of non-tariff barriers (NTBs). This paper contrasts GATT terminology with the definitions frequently found in the literature and describes the multilateral tools that were used in the past to identify NTBs. The latter includes an overview of inventories based on ‘reverse’ notifications and, more recently, the ‘specific trade concerns’ raised in WTO Committees. The paper also looks at the provisions cited by complainants in more than 60 years of multilateral disputes as a proxy for identifying the most relevant NTBs affecting trade in goods, as well as the manner in which they have evolved over time. It concludes that agricultural and non-agricultural products face very different NTBs, and observes that while disputes involving agricultural products are increasingly about ‘behind-the-border’ NTBs, those involving non-agricultural or mixed products are not. Finally, the paper proposes the establishment of a new multilateral instrument to collect and classify information on NTBs based on specific trade concerns raised in the context of the ordinary WTO bodies.

This article aims at analysing the merits and limits of ‘cross-retaliation’ as a mechanism to induce compliance in WTO dispute settlement, specifically from the perspective of developing countries. The focus is on cross-agreement retaliation, in particular with respect to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as this seems to be the most ‘promising’ area for developing countries. Although there are several legal, economic, and administrative difficulties related to the implementation of a suspension of TRIPS obligations and there is so far no practical experience, this seems to remain an interesting option for developing countries – or at least for the largest ones among them – wishing to obtain greater leverage in the system.

Considering the regulatory approval developments for cotton, maize, and soybean within the time period 2000–2013, this paper assesses the extent of asymmetry in the authorizations of new genetically modified organism (GMO) events between importing and exporting countries. The results show an increase in the asynchronous approval across the majority of country pairs. However, focusing only on commercialized events and considering only regulatory approval differences in which the importers are more stringent than the exporters, the asynchronous approval is considerably lower, and the result indicates that the major trade leaders have synchronized their approval status for GMOs over time. Some countries, such as Norway, Switzerland, Thailand, and Turkey seem to face the highest potential for trade disruption, while the opposite holds for Japan and South Korea.

In the traditional theory of international trade, multilateral trade agreements should be easy because self-interested governments unilaterally commit to reduce their own protection and, as a bonus, they reap positive externalities from liberalization by other nations. In practice national governments do not behave as though they are maximizing the welfare of a representative citizen, but instead they respond to pressure from a diverse mix of constituencies and competing special interests. Governments attempt to manage domestic trade-offs within international negotiations, so progress is slow and protection persists. The practical operation of trade negotiations, emblemized by the infamous ‘green rooms’, is characterized by factionalism, horse-trading, and brinkmanship.

After eight years of effort, the 15 Asian members involved in the Regional Comprehensive Economic Partnership (RCEP) met in a virtual ceremony to sign the final document on Sunday, 15 November 2020. The final deal matches the original objective – to knit the region together and allow firms to build supply chains across the region to deliver goods, services, and investment to Asian markets more seamlessly. Getting this free trade agreement (FTA) to this point involved repeated missed deadlines, the loss of one important negotiating partner, and thousands of miles of travel for a rotating cast of officials, trade ministers, and leaders. RCEP began in late 2012 as an effort to unravel what has often been called the ‘spaghetti or noodle bowl’ of overlapping and inconsistent rules that can impede trade. While most of the countries in the region have extensive experience in trade and are outward oriented, trade in Asia has been bedeviled with challenges. This includes a range of both tariff and non-tariff obstacles that have made it more difficult than might be expected to trade, especially for final products, within the region.

In July 2009, Chinese steel producers of grain oriented electrical steel filed anti-dumping (AD) and countervailing duty (CVD) cases against US and Russian producers. The US challenged the duties for a variety a reasons, many of which involved deficiencies in the producers' application to China's investigating authority, the Ministry of Commerce of the People's Republic of China (MOFCOM). The US also challenged certain aspects of MOFCOM's injury analysis. The Panel and Appellate Body ruled in favor of the US on virtually every issue. Given the deficiencies in the application and China's handling of the case, the Panel and AB decisions were justified. In a larger sense, however, we believe China may well emerge as the ‘winner’ in this dispute as this case establishes important standards for allegations and evidence in applications, standards that other countries (including the US) likely have failed to meet when they have imposed AD and CVD orders on the largest target country, China.

The General Agreement on Trade in Services (GATS) was adopted in order to establish meaningful liberalization rules, while preserving the right of Members to regulate. To that end, three provisions form the centerpiece of liberalization: market access (Article XVI GATS), national treatment (Article XVII GATS), and domestic regulation (Article VI GATS). Although these provisions contain different obligations, in certain conditions they can overlap. How this issue is resolved could undermine the delicate balance between liberalization and the right to regulate. As the GATS provides no guidance, the task of determining the applicable rules has been delegated to the World Trade Organization (WTO) adjudicating bodies. This paper examines how the three provisions have been interpreted, and analyzes the most applicable way to address the diversity of barriers to trade in services.

This paper provides limited comments on portions of the Appellate Body (AB) judgment. With respect to the existence of a subsidy under contracts with NASA and DOD, we find the discussion of whether Boeing has received a financial contribution to be a distraction from the core issue – whether the mix of monetary compensation, access to government personnel and facilities, and IP rights ‘overcompensated’ Boeing for the services it rendered (or whether the government paid more for those services than they were worth to the government). The panel's analysis of this core issue, which focused on whether Boeing was the principal beneficiary of the contracts, is flawed, but the alternative approach of the AB is equally flawed. The analogy between an R&D joint venture and equity infusion is dubious, and the existence of a benefit simply does not turn on how one dimension of the contract (the allocation of the resulting intellectual property rights (IP)) is specified. We also argue that even a contract that confers a ‘benefit’ (or economic rent) on Boeing could still be an efficient arrangement for the allocation of cost and prospective revenues between the two partners. With respect to adverse effects, we argue that the panel and AB failed to develop an adequate counterfactual with respect to product developments; that is, it is not implausible that if Boeing had not received a subsidy and would accordingly have developed the 787 later, Airbus would also have delayed the development of the A350. To determine the existence of adverse effects, the panel and AB should have considered the profit (or sales) of Airbus relative to what would have happened in this counterfactual world. Finally, we observe that the analysis of lost sales and ‘price suppression’ fails to consider the specific features of competition in the aircraft industry. Unlike what happens in the market with posted prices, when contracts are individually negotiated, whether the outcome of competition is affected by a subsidy depends on the relative cost position of the bidders. When Boeing is the lowest cost bidder, the only effect of the subsidy is to increase its rent, with no effect on sales or prices for Airbus.

Transparency in the multilateral trade system is fundamental. Monitoring the compliance of WTO members with their obligations is an important part of that transparency, and timeliness in the notification of compliance is crucial. In the case of domestic support to agriculture, the notifications of compliance with obligations has been slow and opaque. But another database exists that could both illuminate the extent to which policy instruments are correctly notified and provide a convenient way to ensure timely ‘pre-notifications’ in the event that delays occur in the future. This note shows how the OECD database can be used, for example, to shed light on the extent to which payments to producers that require production as a matter of eligibility are presently notified to the WTO as having no effect on production. We also demonstrate the feasibility of using OECD data to construct ‘pre-notifications’ by calculating the (as yet un-notified) domestic support notifications for the EU for the years 2009/10 and 2010/11.

With World Trade Organization negotiations stagnant, and preferential trade agreements (PTAs) rapidly proliferating, international trade relations are shifting markedly toward bilateralism. The resulting fragmentation in the international trade regime poses serious risks to economic welfare and the coherence of international trade law. Similar challenges have been faced in the international investment regime, which is comprised of a highly fragmented network of bilateral investment treaties (BITs). However, scholars have identified several mechanisms that promote harmonization in the international investment regime. Among these are cross-treaty interpretation in dispute settlement and the inclusion of most-favoured nation (MFN) clauses in BITs. This paper assesses the scope for these two mechanisms to emerge in the international trade regime by comparing the legal framework, institutional dynamics, and political economy of the trade and investment regimes. The analysis suggests that cross-treaty interpretation is likely to emerge in the trade regime as PTA dispute settlement activity increases and that greater use of MFN clauses in PTAs is a viable possibility. These developments would mitigate the effects of fragmentation and advance harmonization in the international trade regime.

There is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision in Peru–Additional Duty on Imports of Certain Agricultural Products is important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

Legitimate reasons for the imposition of non-tariff measures (NTMs) within regulations have triggered their extensive use. Among these measures, technical barriers to trade (TBTs) and sanitary and phytosanitary (SPS) measures allow countries to impose restrictions on the import of low-quality products suspected of harming domestic consumers’ health, plant life, or the environment. This paper analyses two regulative and standard-like NTMs – TBTs and SPS measures – and the quality of traded products that is driven by their imposition, which is a general underlying motive for the adoption of such regulations. A dummy variable measuring the existence of these NTMs and a count variable indicating their stringency are used in the analysis. Moreover, two other variables indicate flows of NTMs imposed in each year and stocks of these NTMs accumulated over years. The results indicate that TBTs and SPS measures do indeed imply a higher quality of traded products. Stringent TBTs with more regulations imposed in each year (i.e. flows of count TBTs) have the largest impact on the quality of traded products. However, for SPS measures, only the existence of a regulation (i.e. the dummy variable on flows of SPS measures) on a traded product has the strongest impact on its quality.

Issues surrounding the operation of state-owned enterprises in the international trading system is an understudied area and yet one of increasing importance, particularly given the size and significance of Chinese state-owned enterprises (SOEs). We start by situating the SOEs within the GATT and WTO frameworks and then summarize the main findings of a set papers prepared for an advanced law and policy seminar on SOEs held at Columbia Law School in the fall 2016.

The US–Mexico Stainless-Steel dispute presents two interesting questions. First, what role does and should stare decisis (precedent) play in the WTO dispute-resolution system? Second, are there circumstances under which exceptional methodologies, i.e. ‘zeroing’, can better achieve the stated objectives of the agreement than the standard methodologies explicitly stated in the agreement? We argue that the institutional structure and foundational norms of the WTO imply the need for Panels to be bound by the prior decisions of the Appellate Body. Our economic analysis describes the costs and benefits of legal systems with and without precedent. Regarding methodology, we argue that any analysis of the suitability of a methodology (i.e. ‘zeroing’) must be undertaken jointly with an analysis of the underlying objective of the agreement (i.e. remedying injury). We conclude that, under limited circumstances, the ‘zeroing’ methodology is more effective at remedying injury than the ordinary methodology outlined in the Anti-Dumping Agreement.

This article introduces a novel database on investment treaties called the Electronic Database of Investment Treaties (EDIT). We describe the genesis of the database and what makes EDIT the most comprehensive and systematic database to date. What stands out besides the coverage is that treaties are all provided in one single language (English) and in one single format that is machine-readable. In the second part of the article, we provide selected illustrations on how the data can be used to address research questions in international law, international political economy, and international relations by applying text-as-data methods and by extracting and visualizing data based on EDIT.

The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) allows Members to enact SPS measures necessary to protect health so long as they are based on scientific evidence. This scientific evidence requirement has attracted controversy among academics, policy-makers, and civil society. The argument has been advanced that the requirement inappropriately excludes the consideration of public opinion in the domestic risk regulatory decision-making process. The article addresses the question of whether it is possible to reconcile the SPS Agreement's requirement for scientific evidence with concerns regarding exclusion of the public voice in the domestic regulatory process. It responds positively to this query, subject to certain caveats to ensure that trade liberalization goals are not undermined. It argues that the scientific evidence requirement is not only the most appropriate means available for advancing the SPS Agreement's objectives, but that it provides countries with more flexibility than critics contend, including to respond to public sentiment in cases of scientific uncertainty. Recommendations are made as to how panels and the Appellate Body should proceed in disputes under the SPS Agreement, and how governments can comply with their trade obligations while remaining responsive to public concerns.