Since its creation, the GATT/WTO has experienced a vast number of changes, from being a small agreement with 23 contracting parties to becoming an international organization with 151 Members; from negotiations on a limited number of tariff reductions and general rules to embracing wider and more sensitive areas, such as agriculture, services, intellectual property and environment; and from a main-trading-powers' leadership to a wider participation and more balanced reflection of interests from both developed and developing countries alike. This article attempts to demonstrate the pragmatism of coalitions, as well as both the costs and benefits of creating or joining them in the current framework of negotiations in the Doha Round.

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.

European Union (EU) anti-dumping duties imposed on Chinese leather footwear imports led to a challenge before the WTO Dispute Settlement body. The Panel ruled that the EU's presumption that Chinese exporters are subject to economy-wide non-market-economy anti-dumping duties was inconsistent with WTO obligations. The EU declined to appeal this outcome and subsequently changed its anti-dumping regulation in response. This dispute also illustrates the rapidly changing structure of global manufacturing and how these changes can scramble the traditional political economy of import restrictions. In addition, the case highlights how EU members' positions on trade remedy actions can depend importantly on national production patterns and firms' responses to economic pressures from globalization and the further development of global supply chains.

China's unique economic system poses increasing challenges to the world trading system and attracts growing academic and policy debate. WTO members have frequently resorted to antidumping measures in dealing with price distortions caused by the Chinese government's influence on the economy. The Appellate Body's decision in the recent EU–Biodiesel dispute starts to remove the flexibility of condemning state intervention and price distortions under the WTO Anti-Dumping Agreement through antidumping measures. This decision, read with the relevant WTO jurisprudence on the ‘ordinary course of trade’ test and subsidies, suggests that price distortions resulting from state intervention should be addressed under other WTO rules. Therefore, it is necessary for WTO members to shift their focus to, and explore the capacity of, the other rules to overcome the challenges arising from China's state capitalism.

WTO panels are often called upon to decide overlapping claims based on different WTO agreements. One such dispute was the EC–Asbestos case where claims were made under both GATT 1994 and the Agreement on Technical Barriers to Trade (TBT). This paper examines whether the Appellate Body's refusal in that case to examine Canada's TBT claims was justified. The conclusion reached is no, based on the principle jura novit curia, the general prohibition on non liquet and the WTO case law on judicial economy. In addition, the paper examines when two WTO norms must be seen as ‘in conflict’. It argues in favour of broadening the current definition of conflict and clarifies the consequences of a norm being lex specialis.

Can a WTO Member discriminate against foreign suppliers of services located in jurisdictions that refuse to share information with a government to permit it to determine if its nationals engage in tax evasion? Does it matter if the Member uses standards developed by an international body as the criterion for deciding whether to impose measures? In Argentina–Financial Services, the WTO Appellate Body held that services from jurisdictions that share financial tax information may be different from services provided by jurisdictions that do not cooperate in supplying such information. It overruled a Panel finding that measures to increase taxes on financial transactions with non-cooperative jurisdictions were discriminatory. We argue that the AB reached the right conclusion on the basis of the wrong arguments; that it missed an important opportunity to clarify what WTO Members are permitted to do to enforce their domestic regulatory regimes; and increased the scope for confusion and future litigation by considering that the likeness of services and service suppliers may be a function of prevailing domestic regulatory regimes.

This article discusses ways in which the General Agreement on Trade in Services (GATS) and post-GATS free trade agreements may limit the EU's ability to regulate privacy and personal data protection as fundamental rights. After discussing this issue in two dimensions – the vertical relationship between trade and national and European Union (EU) law, and the horizontal relationship between trade and human rights law – the author concludes that these limits are real and pose serious risks.

Inspired by recent developments in safeguarding labour, and environmental standards and sustainable development, the article argues that privacy and personal data protection should be part of, and protected by, international trade deals made by the EU. The EU should negotiate future international trade agreements with the objective of allowing them to reflect the normative foundations of privacy and personal data protection. This article suggests a specific way to achieve this objective.

This paper analyzes the dispute between Korea and the United States regarding the method of calculating anti-dumping duties. The case mirrors other recent WTO disputes involving zeroing. Even though it ceased zeroing in original investigations in December 2006, the United States implemented the policy change only prospectively. As a result, the margins applied to the products in this dispute remained unchanged because they had been calculated prior to the policy change. The United States did not contest Korea's claims. The Panel confirmed that zeroing was used and, following the long line of Panel and Appellate Body rulings, found the practice inconsistent with the Anti-Dumping Agreement. After the Panel Report was adopted, the United States recalculated the margins without zeroing. It, however, refused to refund unliquidated cash deposits that were based on zeroing, highlighting the United States's continued lukewarm compliance with WTO rulings on zeroing. This dispute offers an opportunity to ponder on weaknesses of the WTO Dispute Settlement and the ability of one Member to take advantage of it. Since the facts and their legal assessment were undisputed, why was litigation necessary? Can compliance with WTO law be improved with broader findings and more incisive remedies?

CHARNOVITZ: The Appellate Body's decision in the Tariff Preferences case demonstrates the value of a second-level review of panel decisions. Notwithstanding the composition of the panel – which was as highly qualified, balanced, and diverse as any panel could possibly be – the panel issued a decision that met widespread disapproval. In what is probably a record for third-party support of the plaintiff, eight countries asked the Appellate Body to reverse key points. Happily, the Appellate Body did reverse many of the troubling holdings in the panel report. Unhappily for the world community, the Appellate Body did not have an opportunity to review the panel's interpretation of GATT Article XX, which (like many previous panels) has chiseled away at vital exceptions.

The success of existing GATT/WTO safeguard or flexibility provisions to sustain long-run liberalization stems from their procedural criteria (e.g., transparent and participatory decisions to impose new import restrictions) overcoming their suspect economic criteria (e.g., injury). The proposed SSM includes no procedural and minimal notification requirements. It would expand by arithmetic formulas the bounds within which a Member might unilaterally impose new import restrictions. Simulations indicate that the formulas provide a poor guide for policy – they would (a) allow an import restriction more often in situations when it is not beneficial than when it is, and (b) in situations in which an import restriction would help, they more often ban it than allow it. If procedural requirements are out – i.e., developing Members insist on a ‘usable’ safeguard – then the simple rule ‘bound rates may be exceeded for a maximum of [x] tariff lines at any one time’ is better economics than the proposed price and volume triggers. (No economic criteria are better than bad economic criteria.) Each Member would have the flexibility to change its lists of Special Products and Sensitive Products, there being a limit on the numbers of products on the lists at any one time.

In 2009, the United States imposed additional tariffs for a three-year period on imports of automotive tires from China under a special-safeguard provision included in China's Protocol of Accession to the WTO. China challenged the measure in the WTO. The case marked the first WTO dispute in which a challenged safeguard was upheld by the Appellate Body; the first in which an accession protocol was used successfully as a defense; and the first that China lost as a complaining party. It also was noteworthy in that the safeguard was sought by a labor union, not the domestic industry. This paper reviews the WTO Appellate Body's findings and discusses a number of the legal and policy implications regarding China's Accession Protocol, the Safeguards Agreement, and WTO accession law, as well as economic aspects of the case.

This paper provides a legal-economic assessment of issues arising in the Panel Report over the WTO's India–Agricultural Products dispute, one of a growing list of disputes arising at the intersection of the WTO and domestic regulatory policy over human, animal, or plant health. This dispute featured allegations that India's import measures applied against avian influenza- (AI-) infected countries over poultry and related products were too restrictive, in light of the World Organisation for Animal Health's (OIE's) scientifically motivated standards and guidelines. We rely on insights from a set of economic models of commercial poultry markets in the presence of negative externalities such as AI. We use such models to motivate critical tradeoffs arising at the intersection of government regulatory regimes designed to deal with AI and how they fit alongside trade agreements such as the WTO and standard-setting bodies such as the OIE, which combine to impose constraints on regulatory and trade policy. While we find the institutional design of the OIE to be well-motivated and we are in broad agreement with the overall thrust of the Panel Report in the dispute, we also highlight a number of subtle issues which pose long-term challenges for the multilateral trading system's ability to balance trade rules with public health concerns.

In this paper, we examine the theoretical rationale for WTO rules on the special and differential treatment (SDT) of developing countries. We describe a model of bilateral trade between a small country and a large trading partner, in which the small country suffers from a domestic commitment problem in trade policy. This problem arises because investors in the import-competing sector lobby the government to enact and maintain protectionist policies. We show that a reciprocal trade agreement, in which the large country lowers its tariffs conditionally on the small country doing the same, creates a ‘carrot and stick’ mechanisms that helps the small country to overcome its commitment problem. If capacity in the import-competing sector can only be reduced gradually, the agreement may need to allow the small country to delay the implementation of its trade liberalization commitments, in line with SDT provisions in the WTO. Our analysis suggests that, if reconciled with the principle of reciprocity, SDT can help developing countries to liberalize and improve their trading prospects.

The emergence of Airbus transformed the market structure of the LCA industry into a duopoly of similar-sized full-range manufacturers. The financing of Airbus's upfront investment expenditures came in a significant proportion from public funds, which violated, in the US's opinion the SCM Agreement. While the Appellate Body follows this view of things to a large extent, it does so in a measured way: the category of per se illegal export subsidies is interpreted with a view to the manipulation of normal market conditions; the distortion on competitive conditions matters, not the increase of exports as such. Other aspects of subsidies law clarified are the relationship between effect and subsidy. They are closely related but not identical; rightly, the report operates from the premise that the SCM Agreement's regime focuses on the effect, and not on the subsidy as such, which is a manifestation of a political choice by a sovereign Member state. The Appellate Body affirms that a subsidy has a ‘life’, a shorthand for a beginning and an end: it follows that the effect of a subsidy is not bound to be permanent but is bound to terminate. It is to be regretted that the Appellate Body avoided clarifying to what extent partial privatization, hence sale of assets at market prices to private investors, ‘extinguish’ subsidies.

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.

Measuring trade barriers in services is complex due to all the non-tariff barriers that exist. In this paper we rely on quantity measures using gravity equation. In order to take into consideration the presence of zero flows in the database, we use a sample selection model. Then, we use the results of both stages of the model to derive tariff equivalents based on the distribution of the estimated residuals. Applying this methodology to the Eurostat database, we obtain tariff equivalents for a large number of countries and for 11 services sectors. Our main conclusions are that protection is not homogeneous among sectors for a country and that services openness is not directly linked with the level of development. Our results are robust to changes in specification, but we do find that OLS estimations overestimate the commercial openness of the countries with many zero flows.

This paper examines the World Trade Organization's Article 22.6 arbitration report on the dispute over the United States’ country of origin labeling (US–COOL) regulation for meat products. At prior phases of the legal process, a WTO Panel and the Appellate Body had sided with Canada and Mexico by finding that the US regulation had negatively affected their exports of livestock – cattle and hogs – to the US market. The arbitrators authorized Canada and Mexico to retaliate by over $1 billion against US exports – the second largest authorized retaliation on record and only the twelfth WTO dispute to reach the stage of an arbitration report. Our legal–economic analysis focuses on several issues in the arbitration report. First, the complainants requested that, to compute the permissible retaliation limit, the arbitrators consider a new formula that would include the effects of domestic price suppression. We present a simple, economics-based model to explain the arbitrators’ rejection of this proposal. Second, we provide market context for the $1 billion finding. The arbitrators relied on the trade effects’ formula, which sets the retaliation limit as equivalent to the perceived loss of export revenue from the WTO violation. We argue that this amount was implausibly large, given the conditions in the US market for cattle and hogs during this period. We then describe the challenges facing arbitrators as they construct such estimates, including those likely to have arisen in this dispute.

WTO rules prohibit Free Trade Areas (FTAs) that provide tariff-free access or services liberalization in only one or a few sectors. In this sense, a narrow, sectoral approach to concluding an FTA between the EU and the UK would contravene WTO law. However, assuming the EU and the UK were able to agree a substantially broad tariff-free FTA, WTO rules would not prevent them from moving further to maintain the bulk of the benefits of the Customs Union and the Single Market in a few key sectors. They could establish customs union-like conditions by coordinating external tariffs in some sectors and agreeing on relaxed Rules of Origin (RoOs) administered lightly and Single Market-like access could be approximated through sectoral Mutual Recognition Agreements. Such an approach would enable continued deep integration, whose desirability has been signalled on both sides. It would fall short of current market access levels even in the selected sectors, and, in the case of tariff coordination, re-create some of the limits to an independent trade policy that Brexit aimed to remove. If the trade-off were deemed desirable, however, the approach could be reconciled with WTO rules including the ‘Most Favoured Nation’ requirement that equal treatment be awarded to all WTO Member States.

Preferential trade agreements (PTAs) have to be consistent with the WTO. Their monitoring at the multilateral level has failed so far for various reasons. The question arises what to do? Completion of the contract (‘legalization’) has failed repeatedly, and, in light of vested interests and incentives, there is no reason to believe it can succeed now. Judicialization can be discarded as well, since the incentives to enforce the WTO contract in this respect are lacking. The good arguments thus lie in favour of building bridges between the WTO and PTAs, and the weaker arguments with an effort to enhance enforcement against PTAs through either judicialization or legalization of the monitoring process.

In US–COOL, the Appellate Body (AB) of the World Trade Organization (WTO) found that the US measure imposing country of origin labelling (COOL) requirements on livestock of domestic, foreign, and mixed origin was in violation of the obligation to avoid discrimination embedded in Article 2.1 of the WTO Agreement on Technical Barriers to Trade (TBT). We argue that the AB could not and should not have reached this decision based on the information available to it. The AB adopted an erroneous methodology: under its view, the consistency of a measure coming under the purview of the TBT can be examined under Article 2.1 irrespective of its evaluation under Article 2.2 thereby making the two obligations distinct. The AB also failed to address the central question raised by this dispute: Does there exist an alternative to COOL that is less trade restrictive? We argue that the over-arching issue in this case should have been to determine what, if anything, the TBT Agreement did to alter or enhance the obligation of non-discrimination that was already embedded in the arsenal of the multilateral trading rules. Unless the AB asks this question in subsequent case law pertaining to the TBT, we risk seeing repetitions of similar mistakes in the future.