The AB Report in US–Clove Cigarettes confirmed the Panel's conclusions that imported clove cigarettes were ‘like’ US menthol cigarettes, and accorded ‘less favourable treatment’ for the purpose of national treatment under Article 2.1 TBT, but it employed significantly different logic. The AB's reasoning extends earlier GATT jurisprudence into the TBT, applying competition-oriented analysis to the question of product definition, while reserving consideration of regulatory purpose to the comparison of treatment. We consider this emphasis from the perspectives of legal and economic indeterminacy, which we find run in parallel to each other. In the particular questions of the appeal, the AB's decisions are sensible from both perspectives, but ultimately do not add significantly to determinacy. We find it impossible to ignore regulatory purpose in discrimination cases, and we provide a novel economic model for analysing regulatory utility in this respect. In our view, there is not much economic difference in analysing regulatory purpose separately from more observable market considerations, but this sequencing does add political logic, analytical focus and formal transparency, all of which may enhance the legitimacy of WTO dispute settlement rulings, although ideally, further specification from the WTO Membership regarding the methodological content of the national treatment discipline would be preferred.

In the current multilateral trade regime, members often negotiate under the shadow of WTO law. This article develops a formal explanation of the way in which the credible threat to resort to and the actual use of WTO litigation can influence multilateral trade negotiations. We contend that the ability to impose costs on a defendant by way of litigation increases the complainant's bargaining power, opening a bargaining window and ultimately increasing the chances for cooperation in multilateral trade negotiations. On the other hand, the complainant's preference for loss-mitigation over gains from retaliation and its expectations about the likelihood that the defendant will not comply with an adverse ruling can augment the defendant's bargaining leverage. Thus, contrary to conventional wisdom, increased enforcement does not necessarily make actors shy away from further cooperation, although the credibility of the defendant's non-compliant threats crucially affects the location of any potential negotiated agreement. Empirically, we show that the argument can account for how Brazil, a potential complainant, and the EU and the US, two potential defendants, approached and bargained agricultural negotiations in the Doha Round.

There is evidence that some countries negotiate trade agreements during economic downturns. Why would a leader do this? We argue that political leaders can gain from such agreements because of the signals they send to their public. The public are less likely to blame leaders for adverse economic conditions when they have implemented sound economic policies, such as signing agreements designed to liberalize trade and prevent a slide into protectionism. In hard economic times, leaders – especially those in democratic environments – may find that trade agreements are a useful way to reassure the public. Since majorities in many countries around the world view trade favorably, leaders may see agreements that prevent them from adopting protectionism as a way to maintain support. We evaluate this argument by analyzing preferential trade agreements (PTAs) formed since 1962. We find that, on average, democratic countries are more likely to form PTAs during hard economic times. We also find that democratic leaders who sign PTAs during downturns enjoy a longer tenure than their counterparts who do not sign such agreements.

The Anti-Monopoly Law (AML) of China came into effect in August 2008. In less than a decade, China has made remarkable strides to enforce this law; no other jurisdiction with a competition law system – over 130 to date – comes close to matching China's accomplishments in the first decade of its competition regime. However, China's progress in implementing competition policy remains uncertain.

This paper reviews several key implications of international investment and global supply chain fragmentation for the multilateral trading system. Based on existing economic research, I identify a two-fold challenge for policy makers: first, to leverage the trade-liberalizing potential of global fragmentation at the multilateral level; and, second, to counter the potential for opportunistic manipulation of behind-the-border policy instruments.

Proposed tobacco control measures such as mandating plain packaging of products and prohibiting the use of terms such as ‘light’ and ‘mild’ when associated with tobacco products raise the issue of to what degree WTO Members have regulatory freedom in relation to trademarks under the TRIPs Agreement. This paper uses these measures as a case study to examine rules relating to registration and use of trademarks. More particularly, the scope of Article 20 is addressed, as is the issue of whether TRIPs creates a positive right to use a trademark. This paper argues that no right of use is provided for by TRIPs and that Article 20, whilst not prohibiting the measures in question, is not based upon sound principle and is difficult to interpret. Finally, this paper argues that rules relating to use of trademarks require re-negotiation and that a minimum standard of protection for use of trademarks is not justified except where such a standard relates to principles of national treatment or most-favored-nation principles.

This article examines the relationship between antidumping duties and strategic industrial policy. We argue that the dynamic between the two instruments is more complex and elaborate than that offered by the conventional account. We use the recent China–X-Ray Equipment dispute as a case study to show that linkage between the two instruments may not be the consequence of a government-led policy but instead a result of firm-driven responses to an industrial policy. This in turn may lead to antidumping tit-for-tat behavior between WTO members. We also analyze how WTO litigation serves as a means to alter the payoff and discuss the implications and unresolved questions that remain following the China–X-Ray Equipment ruling by the WTO.

This article critically examines the proposed waiver of intellectual property (IP) rights for COVID-19 vaccines under the World Trade Organization Agreement's Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was initiated in October 2020 when the pandemic raged and vaccines were unavailable. However, the landscape has now changed and the waiver may no longer be necessary. The Outcome Document, introduced in the TRIPS Council in May 2022, along with Ministerial Decision of June 2022 recognizes this by focusing on easing the requirements to use TRIPS-flexibilities to accomplish wider and cheaper access. In so doing, the Ministerial Decision reinforces the notion that TRIPS flexibilities can be a useful part of the policy toolkit, even in times of crisis. After providing an overview of the context and outlining justifications for the waiver proposal, the article analyses and identifies key implications and possible effects of the Ministerial Decision. The article concludes that while the Document may not be a perfect solution to the issue of access to vaccines, flexible application of TRIPS-flexibilities is a better resolution in the current environment, especially given the need for further innovation to combat COVID-19 and future pandemics.

Small and poor countries pose a challenge for the World Trade Organization (WTO). These countries have acquired a significant say in WTO decision-making. However, they have limited ability to engage in the reciprocity game that is at the heart of the WTO, and have limited interests in the broader liberalization agenda because of their preferential access to industrial country markets. Accommodating the interests of the small and poor countries is desirable in itself, but would also facilitate expeditious progress in the Doha Round. The stark reality facing the system is that the desirable ways of addressing their concerns – providing them additional financial assistance and nonpreferential market access – is proving infeasible. As a result, the system is gravitating toward the less desirable option of relieving these countries of obligations, including those that might be welfare-enhancing for them.

In the softwood lumber dispute, the United States argues that Canada's forestry practices, especially the fees charged by provincial governments to private firms to harvest trees on public lands (stumpage rights), result in undue subsidization of Canadian lumber. Within the World Trade Organization, the concept of subsidy is defined as a ‘government financial contribution’ that confers a ‘benefit’ on firms and that is ‘specific’. In US–Softwood Lumber IV, the WTO authorities ruled that stumpage rights were specific and constituted a financial contribution through the provision of a good (timber). However, in order to demonstrate whether and to what extent these rights confer a benefit on lumber producers, the United States still has to ensure that its methodology to assess the ‘adequacy of remuneration’ is compatible with WTO provisions and to conduct a satisfactory ‘pass-through’ analysis of the alleged input stumpage subsidy to unrelated downstream lumber producers.

International trade law, organized around the goods-services dichotomy, is about to meet the Internet of Things (IoT). How will rules written for the world of 1994 fare in a world of talking teapots and connected cars? IoT will especially raise governmental concerns with respect to privacy, security, and standards. Indeed, governments have already begun taking adverse measures against foreign IoT suppliers based not on the hardware, but on the digital features of the products. This paper argues that IoT devices comprise both goods and services, therefore calling into application multiple WTO disciplines, with the specific agreements that are applicable dependent on the particular governmental measure subject to challenge.

There is a broad consensus that global electronic commerce needs the World Trade Organization (WTO) trade rules to govern it. The current mandate of the WTO is merely to examine the various trade-related aspects of e-commerce. Nevertheless, in recent years, some WTO members have put forward a proposal to begin negotiations for global e-commerce rules which was impeded due to the differing positions of developed and developing members. This paper examines the positions of the United States, the European Union, Japan, and China on the e-commerce multilateral rules negotiation issues. It then takes a look at the prospect of the WTO being able to reach an agreement on e-commerce. The analysis shows that the United States and the European Union have varying views on consumer privacy, information protection, and internet taxation. Although Japan sides with the United States on these issues and China is on the same page as the European Union regarding consumer privacy, China holds a different position from the United States and the European Union on the other two matters. China is not making commitments on data localization, free data flow, and forced transfer of source codes. Therefore, the outlook of the current e-commerce talks is not favorable for concluding WTO e-commerce agreements.

Measures restricting data flows outside one's borders, including mandatory data/server localization measures, are not only a barrier to trade, but also largely ineffective in achieving better internet security or trust. Nevertheless, governments deploy such measures, primarily on grounds of cybersecurity and privacy, potentially violating their obligations under the General Agreement on Trade in Services (GATS). In this article, I investigate whether GATS-inconsistent measures may be justified under GATS Art. XIV when aimed at ensuring privacy or cybersecurity, and, if so, whether GATS Art. XIV effectively balances trade and internet policy. As the internet governance framework is complex and somewhat ambiguous, applying GATS Art. XIV to cybersecurity/privacy measures necessitates balancing of trade liberalization principles and domestic internet policy. This exercise can be effective in weeding out data localization measures disguised as privacy/cybersecurity measures, particularly by employing relevant technical and factual evidence. However, given the lack of binding international law/norms on these issues, GATS Art. XIV has a limited role, particularly in cases involving direct conflict between multistakeholder/transnational internet norms and domestic internet policies, or where the measures are founded on contentious standards/benchmarks on privacy/cybersecurity. Ultimately, ensuring free and secure data flows requires a multidimensional policy response, including strengthening linkages between trade law and internet governance.

By disentangling productivity- from quality-sorting in horticultural exports, this paper investigates the impact of food safety standards and consumers’ preference for quality on developing countries’ capacity to export high care and differentiated agricultural products (HCAs). Using a unique database on US import refusals, the empirical analysis shows that a shock to reputation has a downgrading effect, reducing the capacity to participate and benefit from trade in HCAs. The occurrence of at least one refusal in the current year reduces HS 6-digit average unit export price by over 8% and the long-run propensity suggests a 25% cut.

This paper reviews the WTO Appellate Body Reports on United States–Zeroing (EC) (Article 21.5 DSU – EC) (WT/DS294/AB/RW, 14 May 2009) and United States–Zeroing (Japan) (Article 21.5 DSU – Japan) (WT/DS322/AB/RW, 18 August 2009). The Appellate Body found that the United States had not brought its anti-dumping measures into compliance with the WTO Anti-Dumping Agreement as it continued to use zeroing in annual reviews of anti-dumping orders. We argue that this conclusion – based on a complicated discussion of what constitutes a ‘measure taken to comply’ – could have been reached through a much simpler and direct argument. Continued noncompliance by the United States generates costs to traders targeting the United States and the trading system more generally. We argue that from a broader WTO compliance perspective consideration should be given to stronger multilateral surveillance of anti-dumping practice by all WTO members and to more analysis and effective communication by economists regarding the costs of zeroing and anti-dumping practices more generally.

Export restrictions imposed on various food products and natural resources have been subject to extensive public attention. Most recently, China's restrictions of its exports of certain minerals and rare earth metals have led to heated debates. The United States (US), European Union (EU), and Mexico have already filed a WTO dispute case against China on this matter. This paper describes the policy objectives and the global welfare implications of export restrictions. It summarizes the relevant WTO regulation, and offers a detailed analysis of the China–Raw Materials case which is before the Dispute Settlement Body (DSB). It argues that although export restrictions is arguably an area of ‘under-regulation’ or ‘regulatory deficiency’ in the WTO law, it is strongly biased against the late accession Members, including China. Yet, the way that China institutes its export restrictions raises serious questions about its role in the multilateral trading system, which it relies on for its economic prosperity. Hence, this is an area where China is likely to feel the implications of its so-called ‘WTO-plus’ commitments on its domestic and trade policies.

This paper addresses the issues of whether the linking of core labor standards with multilateral or bilateral trade agreements is an effective way of promoting the improvement of labor standards. We review the determinants of core labor standards over time and conclude that efforts to improve these standards have to be tailored to the economic and social circumstances prevailing in a country at a specific time. Legalistic means to prod governments into revising their domestic laws or enforcing them will therefore be unsuccessful unless economic incentives can be changed to erode prevailing social norms and ease the way for the acceptance of new norms that will meet with public approval and be consonant with the distribution of political power. Moral suasion from both domestic and external sources may work more slowly than more legalistic means but is preferred because it contributes to altering the social norms that underlie and will reinforce the acceptance and effectiveness of labor standards.

After almost two decades of dealing with asymmetric threats, America's strategic focus on technological superiority carefully honed during the Cold War, began to fracture, eroding its military and economic advantage. But China's recent emergence as a credible geopolitical rival has reinvigorated US efforts to sustain high-tech leadership as the basis of its military primacy. At the center of these efforts are the defense and defense-related agencies of the national security state (NSS) whose mission is to dominate the new technological frontiers of military power and achieve future competitive advantage. Alongside the quest for breakthroughs in foundational technologies, NSS agencies are seeking to correct long neglected deficiencies in advanced manufacturing, by rebuilding the industrial ecosystem's supply chains depleted after decades of offshoring. With this suite of initiatives, the US is following a course of action more consistent with the exercise of (economic) statecraft than industrial policy. However, unlike its authoritarian rival, the US faces the challenge of having to balance security imperatives with commercial interests and, not least, having to contend with a dysfunctional and maladapted presidency.

This article analyses the relationship between national climate change policy instruments and WTO rules with particular emphasis on the case of Germany. Our main finding is that national policies whose aim is to reduce greenhouse gases can be brought into compliance with international trade law. Compliance can be achieved, first, through various methods of labelling electricity from renewable resources. Second, it can be achieved through trading systems for green certificates that respect basic WTO principles. Third, it can be achieved through energy taxes. To offset the competitive impacts of such taxes, border tax adjustments are a possibility. Although WTO law has not yet clearly defined the eligibility of border tax adjustments for energy taxes, the balance of evidence suggests that it would support such adjustments under certain circumstances. Fourth, compliance with WTO rules can be achieved through financial incentives to the producers of energy from renewable sources which are conferred in such a way that they do not pass through the hands of the government. Hence, climate change policies can even rely on ‘subsidies’ (in the economic sense) without getting into conflict with WTO rules. Fifth, when compliance cannot be achieved, national policies aiming at international environmental protection can claim an exception under GATT Article XX (b) or (g) if measures are not applied in an arbitrary or discriminatory manner. In addition, countries should further strive to find solutions to the global climate change problem in the Kyoto process.

The Belt and Road Initiative (BRI) has brought with it an unprecedented number of agreements. BRI agreements consist of primary agreements (particularly MOUs) and secondary agreements (like performance agreements). They are a distinct, landmark feature of the BRI. Focusing on primary agreements and their close link with secondary agreements, this paper explores the following questions: What are the legal status and characteristics of primary agreements? Why are they adopted by China? What challenges do they face? BRI primary agreements can be regarded as a form of soft law, but that repurposes soft law characteristics for project development rather than rule development. BRI primary agreements have the following unique characteristics: (i) minimal legalization, (ii) a coordinated, project-based nature, and (iii) a hub-and-spoke network structure. While BRI primary agreements benefit from the advantages of soft law (e.g., reduced contracting costs, flexibility), they face challenges including those concerning underlying interests and their effectiveness.