The Dispute Settlement Mechanism (DSM), once regarded as the jewel in the crown of the World Trade Organization (WTO), has been facing a variety of serious criticisms for its inherent limitations and problems while its appellate review function has been paralyzed. Discussions on the reform of the WTO DSM have been under way for several years now. Many key items are on the reform agenda, one of which is to introduce Alternative Dispute Resolution (ADR) proceedings to the WTO DSM. Among several options of ADR, ‘mediation’ can offer an important set of tools for the WTO and its Members to resolve disputes in a more efficient and prompt manner. If properly structured, mediation can complement the existing binding proceedings of panels and the Appellate Body. At the same time, introduction of mediation to the WTO DSM may also cause additional legal and practical problems. It may cause further delays, confidentiality traps, due process myriads, and enforcement loopholes. It is vital to introduce mediation provisions to address those critical problems. Systematized and structuralized mediation in the WTO DSM will be able to offer a viable alternative path to resolve certain complex and sensitive disputes.

The WTO Government Procurement Agreement (GPA) does not legally define what entities should be covered by the Agreement. However, its member Parties list their ‘covered entities’ in a series of schedules. The list approach has complicated accession negotiations and discourages Parties from providing a ‘wider’ range of entity coverage. Moreover, the list approach raises some tensions and a lack of legal certainty, especially concerning those that are not strictly ‘government entities’, such as State-owned enterprises (SOEs). This problem is exacerbated in the case of modern SOEs in developing countries, many of which can bear both public and private features. Given these conditions, the author proposes a definition of ‘covered entities’ to facilitate accession negotiations and the future expansion of the GPA. The proposal is based on a comparative study of the GPA and the EU public procurement regulations. It develops a framework by which all publicly controlled entities are presumably covered by the GPA. Nevertheless, Parties can rebut GPA obligations by proving that an entity competes with other commercial entities under normal market conditions.

This article examines shifts towards onshoring pharmaceutical manufacturing, a response to the vulnerabilities exposed by the COVID-19 pandemic in global supply chains. It delves into how globalization, public policy, and geopolitical tensions have shaped pharmaceutical markets, compelling nations to seek solutions that ensure reliable medicine access and reduce dependency on foreign supplies. The study highlights disparities in regulatory oversight and geographic concentration of production, which contribute to frequent shortages, particularly of generic medicines. The pandemic intensified these issues, prompting increased state interventions and heightening concerns over geopolitical risks. As a result, onshoring efforts, often encapsulated in local content measures, have expanded, and are now driven by both economic motives and imperatives of national security and public health.

China has initiated three antidumping (AD) investigations against US feed products since 2010, despite clear mutual benefits from such exports from the US to China. This article provides a close examination of these investigations, what prompted them, how they were resolved, and the costs they imposed on importers and exporters. The article also describes the political economy around these investigations and how China's antidumping laws provide it with flexibility to manage these investigations. The article concludes that this flexibility makes China well-positioned to continue using AD investigations against some trade partners in the future, particularly if AD use continues to rise globally.

The GATT security exceptions were practically in hibernation until recently. The recent WTO disputes panel activity concerning such exceptions is characterized by a standard of review that places the accent on ‘when’ action should be taken and not so much on ‘what’ action should be taken. We see two problems with this construction. First, the ‘when’ might be a function of privileged information that those possessing it might be unwilling to divulge in a transparent manner. Second, national security is an amorphous concept, and unless we disaggregate it, it is impossible to pronounce the appropriateness of measures adopted to pursue the underlying objective. In turn, the absence of disaggregation could lead to false positives and negatives, as the same action could be pursuing essential security or providing protection to domestic players.

Our paper sheds light on Sanitary and Phytosanitary (SPS) cooperation among trading countries. We contribute to the existing literature a data-driven analysis on the effectiveness of various forms (in monetary value, duration, and diversification) of SPS related technical assistance received by 33 countries from 1993 to 2015. The World Trade Organization's (WTO's) SPS Agreement encourages biosecurity for countries through technical assistance, to safeguard human health and productivity from contamination by biological hazards (pests, pathogens, or invasive species). Our panel model finds that WTO's SPS program encourages simultaneously agricultural trade and biosecurity. We implement a Multiple Indicator Solution (MIS) to correct bias from the endogenous technical assistance. The effectiveness of technical assistance depends on geography and the level of development among the heterogeneous countries referred to in our data. This investment in biosecurity benefits both donors and recipients of technical assistance. Based on our results donors should be encouraged to invest in countries with below average resources and abilities.

Two scholarly communities work on global trade and investment governance yet communicate little with each other. On the one hand, classic trade and investment scholarship focuses on states' foreign economic policies, trade and investment treaty programs, and participation in the World Trade Organisation. On the other hand, scholars of private and commercial law study how businesses draft and enforce the international contracts of a private law nature that ultimately constitute international trade and investment transactions. This research note seeks to raise awareness for this bifurcation of research on global trade and investment, develops a conceptual framework to better understand the role of private law in shaping trade and investment flows, and proposes a research agenda anchored in economics, political economy, and political science to advance our understanding of the role of private law in global trade and investment transactions and governance.

The EU has introduced a Carbon Border Adjustment Mechanism (CBAM), which extends its carbon prices to imported products in some sectors. Increasingly considered by other countries, such border carbon adjustments (BCAs) are facing a global backlash against the lack of consideration of the adverse impacts on developing countries and particularly, least developed countries (LDCs). This article first argues that small overall import volumes support the conclusion that exempting or lessening BCA requirements from LDCs would not undermine developed countries' climate-related objectives in practical terms. An economic analysis of EU and UK trade in relation to a CBAM supports this assertion. However, legally, such an exemption or development-based preferential treatment is difficult under existing multilateral trade rules and jurisprudence, owing to the legal characterization and objectives of BCAs; their interaction with existing special and differential treatment (SDT) provisions; and complexity of available policy options. We thus highlight the gap between normative aims of SDT provisions to support development, and current WTO law and jurisprudence which expose WTO members providing preferential treatment to allegations of discrimination. With increasing unilateral climate action, an inability to integrate SDT more meaningfully into WTO non-discrimination frameworks risks further weakening of international cooperation on climate and trade.

This paper develops the concept of transience of (in)formality to refer to the intersection of formal and informal negotiating procedures in the WTO decision-making system. It argues that both formal and informal negotiating processes are essential for delivering negotiating outcomes in the WTO. Particularly, the article assesses how informal negotiating practices emerge within the WTO formal framework and align with it. The analysis highlights how negotiating practices (re)shape existing norms, both formal and informal, adapting the WTO to overcome challenges and meet current needs. It also disputes legal formalistic perspectives that permeate trade literature and offer limited accounts of Members' agency in the WTO. The paper uses the Joint Initiatives as a case study to illustrate the convergence between formality and informality and a possible way ahead for the WTO negotiations. By broadening the understanding of law-making, it contributes to the discussion on WTO reform. It provides alternatives that reflect the reality of WTO negotiations and underlines the institution's relevance.

The global trading system has reached an inflection point. The future of the liberalized, rules-based global world order is in doubt as countries that have for decades preached and practiced policies, which can loosely be defined as embodying the ‘Washington Consensus’, have started to backtrack. Free and fair trade is no longer the mantra as governments embrace industrial policy, protectionism, national security, risk management, and managed trade. Perhaps the most surprising adherent of the reversal is the US, whose embrace of what has been termed a ‘modern American industrial strategy’ runs counter to traditional American views and norms. While David Ricardo's theory of comparative advantage still holds true, it has certainly fallen out of fashion. Where it leads remains unknown – caveat emptor. This article analyses President Joe Biden's industrial policy and its implications as well as shifts that have occurred as a result of the pandemic, geopolitical competition, and other recent global events.

A ‘smart city’ is a buzz term and concept. The ‘smart city’ has mainly been discussed in the scholarly literature on urban planning, architecture, and geography. While the ‘smart city’ has been under-analyzed in international trade law, the term ‘smart city’ is commonly used in Asian trade policies. The Association of Southeast Asian Nations (ASEAN) established the ‘ASEAN Smart Cities Network’ and the ‘smart city’ is now an important market opportunity for exporting smart technologies and services to ASEAN. Against this backdrop, this article addresses how smart cities can be regulated and governed by international trade law. The trade law perspective facilitates a broader understanding of smart city governance, which includes under-explored ‘global’ regulatory dimensions concerning the interaction between local governments and foreign firms. This article selects three relevant trade areas for discussions: (1) Internet of Things in the context of trade in goods and services; (2) international standard-setting activities; and (3) data governance. It further considers what kinds of regulatory issues international smart city projects can add to the current digital trade discourse. Drawing on the smart city literature, the article points out additional problems concerning security and privacy that have not yet been acknowledged in digital trade.

Rulemaking in digital trade is proceeding apace. Many preferential trade agreements contain dedicated e-commerce or digital trade chapters and some states have entered into stand-alone digital economy agreements. This article seeks to establish whether, and to what extent, normative change is occurring in digital trade agreements, the nature of any changes, and identify which states are acting as norm entrepreneurs. We employ a new method of legal coding, systematically comparing the nature and prescriptiveness of digital provisions in 12 trade agreements concluded between 2019 and 2023. We find evidence of substantial policy innovation, and identify Singapore as the key norm entrepreneur. A new wave of ‘Singapore-led’ agreements substantially expands the scope of digital trade, to cover areas such as digital identities, e-invoicing and e-payments, the governance of AI, and regulation of new digital technologies. Commitments are typically couched as soft rather than hard law, reflecting the nascent stages of rulemaking. Norm entrepreneurship on the part of Singapore and its allies reflects a desire to position themselves as ‘digital hubs’ in the global economy, spur rulemaking in areas where innovation is ahead of regulation, and promote digital interconnectivity at time of regulatory divergence and geopolitical rivalry.

To avoid penalizing exporters that already paid carbon prices, the EU Carbon Border Adjustment Mechanism credits carbon taxes and Emissions Trading Schemes in third countries. By excluding instruments of traditional regulation (e.g. emission standards) and indirect carbon prices (e.g. fuel excise taxes) from this crediting mechanism, the EU is criticized for discriminating against countries that do not follow its climate model, in breach of international trade and climate law. This article seeks to nuance this criticism by arguing that the calculation of actual emissions (instead of default values) under the EU CBAM allows exporters to reflect compliance with foreign emission standards, and thus respects states' right to pursue emission reductions through traditional regulation. However, amendments of the CBAM Regulation are necessary to recognize the positive and negative impact of indirect carbon prices on decarbonization, and the role of carbon-crediting mechanisms in equalizing carbon costs in a more flexible and equitable way.

This article examines imports by Swedish firms and the utilization of the tariff preferences offered by the EU–South Korea Free Trade Agreement. To benefit from tariff preferences, the importer must make a formal request to use the preferences and also document the origin of the imported products (with a certificate of origin provided by the foreign exporter). This may be costly, and some importers choose to pay import tariffs even when tariff preferences are available. Hence, the preferences are not fully utilized. Using a detailed firm–transaction level data set on Swedish imports from South Korea, we analyse the determinants of preference utilization and how firms learn to use preferences. The results show that preference utilization is strongly correlated with potential duty savings, which depend on the preference margin and the size of the import transaction. From a learning perspective, we find that preference utilization is closely related to the number of import transactions undertaken by the firm, suggesting a learning-by-doing mechanism. The length of time the firm has been involved in importing activities plays a smaller role.

This article discusses and contextualizes the very recent advancements in digital trade regulation based on the insights provided by the Trade Agreement Provisions on Electronic-commerce and Data (TAPED) dataset. Within the time frame of January 2020 to November 2023 that we analyze, digital trade negotiations have increased in preferential trade agreements (PTAs) significantly, and there has been a sharp rise in the negotiation of new types of treaties, known as ‘Digital Economy Agreements’. Beyond the critical advances in substantive rulemaking, we observe non-traditional actors stepping into the gap left by the shifting interest of traditional rulemakers to craft rules that best fit their policy priorities. Additionally, we see a broadening of topics beyond conventional digital trade matters, underscored by commitments of limited legal enforceability. The TAPED dataset has been updated to reflect these recent developments, emphasizing the importance of regular reviews to stay current and accurately inform research and policymaking in the area of digital trade regulation.

The exit of the United Kingdom from the European Union (EU) single market and customs union has adversely affected trade prospects of many developing economies that depended on the UK market for their exports. This paper investigates the impact of Brexit on African countries' exports to the UK. The comparison is based upon trade between the set of African countries which export most to the UK and the EU. It provides a quantitative assessment of the trade effect through the use of descriptive analysis and empirical estimations by employing the difference-in-difference (DID) estimation approach. The descriptive analysis finds that the share of African exports sent to the UK has declined since the Brexit announcement in 2016. The empirical estimations using the DID approach also demonstrate a drop of 20–30% in African countries exports to the UK relative to the EU-27 in this period. These results hold to a battery of robustness checks, including the use of an alternative estimation approach, varying sample size, and the use of alternative counterfactuals. We further show that the trade flows started to drop immediately after the announcement of the Brexit referendum in 2015 but the main drop came after the Brexit referendum results became evident. These findings imply the need for policy intervention and support for African countries to revitalize their trade flows and alleviate the unintended effects of this trade shock.

The inception of the African Continental Free Trade Agreement (AfCFTA) constitutes a major advancement in Africa's economic integration process. Diverging from what appears to be the norm in contemporary trade treaties, the agreement adopts a conditional Most Favoured Nation (MFN) clause hinged on the principle of reciprocity. Without the promise to reciprocate preferential treatment, the beneficiary state does not assume the right to demand MFN treatment. In broader discussions, this feature has been criticized for possessing the tendency to restrict trade. However, examining it in the context of Africa's trade paradigm, this paper argues that the non-automaticity of the AfCFTA's MFN clause is a cardinal feature safeguarding its existence.

Brazil has changed its negotiation strategy in World Trade Organization (WTO) negotiations. In the first half of the WTO era (1995–), Brazil adopted a strong developing country leadership role as coordinator and spokesperson of the G20 group of developing countries. More recently, however, this group has disappeared from the negotiation scene. This article examines how Brazil has departed from a 2000 status quo and arrived at a more flexible approach, less reliant on the industrialized-developing divide as a structuring principle of its diplomacy. Using WTO negotiation documents, trade delegate interviews, dispute settlement case law, and secondary literature, I outline the contours of new directions in Brazilian trade policy. These include joint legislative initiatives with the EU, a move towards the plurilateral level on non-traditional issues, a greater heterogeneity of dispute settlement targets, and a newly flexible handling of its rights under the WTO's special and differential treatment status. The article contributes to ongoing debates on Brazil's status in international affairs, its reliance on large coalitions, and the maintenance of followership as key directives of its foreign policy, and scholarship that sees Brazil as stuck in a ‘graduation dilemma’.