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.

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 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.

The WTO is exposed to significant political risks deriving from both the abusive employment of the national security argument, as well as the use of the WTO dispute settlement system to address this problem. This article explores the implications of the first WTO panel decision, adopted in April 2019, in which the argument of ‘essential security interests’ was employed to justify trade restrictions. Article XXI of the GATT 1994 now tends to be invoked in other ongoing disputes, notably by the United States in the dispute settlement cases involving its barriers to steel and aluminum. The article argues that pathways other than WTO litigation should be explored to deal with trade barriers adopted under the argument of national security and, despite the absence of simple solutions, it considers some possible alternatives.

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.

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.

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.

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.

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.

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.

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.

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.

Since 2017, the United States (US) and other World Trade Organization (WTO) members have been violating their legal duties and democratic mandates given by national parliaments to maintain the WTO Appellate Body (AB) as legally prescribed in Article 17 of the WTO Dispute Understanding (DSU). Article 17 defines the AB as being ‘composed of seven persons’, with vacancies being ‘filled as they arise’. Sections 2 and 3 explain why none of the reasons offered by the US for its blocking of the (re)appointment of AB candidates – on grounds unrelated to the personal qualifications of the candidates – can justify the illegal disruptions of the WTO legal and dispute settlement system. EU trade diplomats must exercise leadership using the existing legal powers and duties of the WTO Ministerial Conference and General Council under Article IX WTO – if necessary, based on ‘a majority of the votes cast’ – to complete the WTO selection procedures for filling AB vacancies and protect the AB as legally defined in Article 17 DSU. Sections 4 and 5 explain why the competition, social policy, and rule-of-law principles underlying European ‘ordo-liberalism’ offer coherent strategies for overcoming the WTO governance crises by limiting hegemonic abuses of both US neo-liberalism and Chinese state-capitalism.

The Upland Cotton case raises a range of interesting issues regarding the rationale for retaliation in the WTO system and the proper approach to its calibration. These include: Should the approach to retaliation differ in cases involving prohibited or actionable subsidies? When should cross-retaliation be allowed? Should retaliation be based only on the harm to the complaining nation, or to other nations as well? And, most importantly, what economic content can be given to the standard of countermeasures ‘equivalent to the level of nullification or impairment’? We address these and other issues from both a legal and economic perspective, with particular attention to the question of what level of retaliation will restore the lost welfare of the complaining nation.

This is the eighth Appellate Body Report in which some aspect of zeroing was adjudicated. As in the prior cases, the AB again found the US practice inconsistent with several aspects of the Anti-Dumping Agreement. The novelty in this dispute was the EC attempt to broaden the concept of what constitutes an appealable measure. The EC challenged whether a WTO decision regarding zeroing could apply to subsequent proceedings that might modify duty levels and asked the AB to decide whether the United States' continued use of zeroing in the context of a given case was consistent with WTO obligations. The AB stated that in its attempt to bring an effective resolution to the zeroing issue, the EC is entitled to frame the subject of its challenge in such a way as to bring the ongoing use of the zeroing methodology in these cases, under the scrutiny of WTO dispute settlement. The AB then cautiously applied the new perspective to US zeroing practice.