This research note contributes to moving the scholarly field of international investment law beyond its dominant focus in recent decades on issues of post-admission investment protection and investor–State dispute settlement (ISDS). Specifically, it maps a future research agenda focusing on issues of investment facilitation and investment liberalization. This research note analyses several common and important themes that arise in relation to treaty-based investment facilitation and investment liberalization commitments. These include the value-added of international legally binding obligations, the impact of international commitments on States' applied policies, and a notable shift away from investor–State arbitration towards State–State dispute settlement only and mechanisms for ongoing cooperation between the treaty parties. These themes raise challenging questions, which often call for future empirical research employing methods other than traditional legal analysis. Nevertheless, this research note suggests that the scholarly field of international investment law has much to gain from shifting some of its focus away from well-versed issues of investment protection and ISDS towards under-researched questions concerning investment facilitation and investment liberalization commitments.

Amid a new era of disruption spawned by looming climate threats and significant geopolitical tensions, an increasing number of countries have favored a more robust green industrial policy (GIP) to reduce carbon emissions and achieve other economic, political, and geostrategic objectives. The use of multi-purpose GIPs not only raises questions regarding the policies' compatibility with the World Trade Organization (WTO) rules but also, more broadly, profoundly implicates the interface between energy, trade, and the environment. This article selects China, the United States, and the European Union as case studies and provides a thorough analysis of the specific text and context of their GIPs to identify the new trends that deviate from past practices in order to capture the policy transformation. It highlights the disruptively adverse implications of the multi-purpose GIPs on the multilateral trading system. However, the WTO has an opportunity to mitigate such disruptions and avoid a seemingly unavoidable clash by facilitating international cooperation and coordination in the design and implementation of multi-purpose GIPs, particularly among major clean energy producer countries. In doing so, the WTO can strengthen its credibility and stability while also minimizing the misalignment of the diverse objectives and ensuring the decarbonization efforts will not undermined.

The exercise of environmental ‘leverage’ via trade-related measures and trade in environmental goods offers opportunities to tackle the climate crisis and advance transnational decarbonization. Inward-looking, adversarial, and short-term national security-centred approaches, however, are disrupting the trade and climate change mitigation linkage. This article employs the race for critical raw materials and US and EU strategies to promote the net-zero transition at the domestic level as case studies to illustrate the environmental pitfalls of the ‘securitization’ of the trade and climate change mitigation nexus. The article demonstrates that the pursuit of strategic dominance in key net-zero sectors, attempts to exclude systemic rivals and reshore supply chains, opportunistic forms of friendshoring and loose agreement on regulatory means jeopardize recourse to environmental ‘leverage’ and undermine decarbonization at both national and transnational levels. This analysis casts a light on the inherent tension between national security and climate change mitigation. Taking stock of these findings, the article advocates a radically different approach to the governance of the trade and climate change mitigation nexus.

In the face of ongoing disruptions to the multilateral trade regime, from deadlock at the WTO to the rise in unilateralism, this contribution examines the role that free trade agreements (FTAs) can play in supporting the adoption of common standards for sustainable development. It does this in three moves: first, it reframes the role of FTAs from sources of obligation and mechanisms of compliance to sites of economic diplomacy where governments can shape international standards through FTA structures; second, it unpacks the relationship between regulation and standards through three case studies (dolphin-safe labelling, automotive standards, and nutrient profiling), identifying means through which FTAs can be leveraged by trade policy actors; third, it draws on these lessons to examine how FTAs can support the uptake of key new standards and quasi-standards for sustainability, in this case, the ISO Net Zero Guidelines. Finally, this contribution reflects on the implications of reappraising the development of world trade law as part of the practice of economic diplomacy.

The article explores how the COVID-19 pandemic revived discussions on the importance of local pharmaceutical production for promoting health security and resilient health systems. It examines the World Health Organization's hub and spoke mRNA vaccine production model (mRNA hub), a global initiative that aims to establish sustainable, local mRNA manufacturing capabilities in low- and middle-income countries in response to the inequities in access to COVID-19 vaccines and the trade disruptions during the pandemic. Using the mRNA hub as case study, the paper discusses how the tectonic shift towards local production implicates supply and license agreements, and thus IPRs. The paper maps the intellectual property challenges that might impact the mRNA hub's sustainability and provides recommendations on how to enhance the initiative's chances of success and foster a more equitable pharmaceutical sector in the future.

Multifaceted geopolitical conflicts have led to disruptions in the trade regime and multilateral negotiations. As a paradigm shift, green regionalism has emerged as a new normative process for regional economic frameworks to integrate and operationalize environmental sustainability. The article offers the first interdisciplinary analysis of green regionalism in world trade law. It argues that green regionalism, which has evolved amid various waves of global regionalism, constructs the normative foundation for ‘Trade and Sustainability 2.0’. The article employs the concept of recognition in international relations to unveil the motivations and actions of major states in catalyzing green regionalism. Legal and political challenges confronting the Environmental Goods Agreement of the World Trade Organization, environmental agreements, and mega-trade agreements are also examined. Second, the article explores the multipolar frameworks for implementing green regionalism. Case studies involving recent developments of US and EU trade pacts, as well as of new Asia-Pacific green economy agreements, shed light on the trade-sustainability nexus. Hence, the theoretical and empirical implications of the research are valuable for devising trade law approaches to advancing Sustainable Development Goals.

This article critically examines the evolution and potential of domestic trade barrier procedures in the US, EU, and China. Emblematic of this mechanism is US Section 301. Aimed at facilitating market access, these procedures function as tools of unilateralism and strategic leverage. Employing qualitative and comparative methods, the analysis explores their use in handling private complaints and combating adverse trade practices, highlighting a trend of ‘normative realignment’ in the deployment of these procedures. Once focused on resolving private grievances, such procedures are now increasingly playing a role in securing national interests. This shift marks a departure from traditional international cooperation, reflecting a recalibration of trade policies. Against the backgroup of growing encystment of unilateralism, the article argues that domestic trade barrier procedures could be adapted to address the demands of the current global economic environment. The article posits that, if executed properly, domestic trade barrier procedures may serve as a buffer mechanism vis-a-vis the tectonic shifts in economic order. In doing so, the article envisions a new generation of domestic trade barrier procedural frameworks.

Globalization generates benefits for nations around the world, but it also creates winners and losers within nations. As former WTO Director-General Pascal Lamy puts it: ‘Globalization works because it is painful, and it is painful because it works’.1 This is why international economic integration inevitably creates a collective action problem; opposition by losers may thwart policies that would benefit nations overall.

The conventional approach to trade liberalization has been to liberalize trade through international agreement and address subsequent domestic fallout and spillovers through domestic policies. In consequence, international obligations in trade liberalization are not legally connected with ‘flanking’ measures to address their negative effects. We discuss the shortcomings of this conventional approach with respect to labor adjustment and environmental protection: for political reasons, trade liberalization requires today the simultaneous regulation of labor and environmental spillovers. We suggest a novel approach to trade liberalization that includes the necessary flanking policies as part of, or linked to, the international agreement itself. This novel approach seeks to achieve the best of both worlds: reaping the benefits of international trade while making sure that negative spillovers are effectively addressed. To illustrate the intricacies of this approach, we introduce a new conceptual framework covering the negative effects of trade liberalization and flanking or mitigating policies, and a proposed novel approach in the form of trade liberalization packages and package treaties. Trade liberalization packages and package treaties are currently emerging around the world (e.g. sustainable palm oil in EFTA–Indonesia) and deserve our close attention.

In the past decades, a backlash against globalization has been brewing, especially in advanced economies. Despite this backlash being only partly determined by trade, we observe an increasing demand for transparency on procedures, methodologies, and results. Impact assessments (IAs) aim at identifying expected effects of trade agreements and at highlighting policymakers' concerns, thus representing an important tool to foster public acceptance. To help us identify spillovers of trade liberalization, we construct a country and sector-specific database of impact assessments. This database provides an overview of the evolution of the coverage and methodological approaches taken by the EU and US for their IAs. We rely on official EU and US sources over the period 1990–2023. We first observe differences in terms of methodology and institutional framework within and between the two regions. Secondly, the coverage of non-trade outcomes has evolved over time both for the EU and the US, with the inclusion of more labour, environmental, and human rights indicators as well as cross-cutting issues. We observe that the depth of the evaluation is correlated with the partner country's social protection and environmental performance. Lastly, we find that the inclusion of a sector in the analysis is driven by economic reasons in the EU but by political reasons in the US.

This article studies the incorporation of package treaties in domestic law and administrative practice, including the functions these treaties serve once in force. This sketch of the domestic operationalization offers a window into the institutional design choices that shape how lawmakers craft the regulatory ecosystem in which flanking policies are carried out. The typology for understanding how governments situate package treaties in their domestic regulatory spaces is introduced, arguing that the ‘package’ of legally binding trade liberalization commitments and mutually agreed flanking policies is shaped by both legislative and regulatory choices that are often underestimated and overlooked. DUS trade agreements are used as a case study, finding that the US government's treatment of each of its trade agreements tends to follow a common pattern: only a small part of the agreement is transposed into domestic law; complex and robust institutions are built around the agreement to embed it deeply into the trade policy work of the executive branch; and, the entrenchment of US trade agreements has a significant enabling effect across a wide range of cross-border regulatory engagements that US agencies think of as ‘monitoring’ or ‘enforcing’, among other labels. Finally, the policy choices against the goals laid out by proponents of package treaties are assessed.

The post-World War II liberal international order coupled trade liberalization with a range of flanking measures, both outward-looking and inward-looking. This system, coupling domestic-level compensation with international-level flexibility, no longer functions as effectively as it once did. To consider how a renewed set of flanking policies might address, or even prevent, a backlash against trade liberalization, we explore why the earlier system (embedded liberalism plus temporarily tolerated relief) did not always function effectively. We note the challenges associated with generous domestic compensation schemes, especially in the face of capital mobility and fiscal pressures. We discuss the interstate tensions generated by the use of temporary relief measures, such as escape clauses and safeguards, and we also discuss how the expansion in membership of the multilateral trade system (and particularly the inclusion of countries with a greater array of economic institutions and factor endowments) exacerbates these challenges. Finally, we consider how the domestic politics of flanking policies could differ from those used in an earlier era.

Flanking policies – policies that aim to address potential negative effects of trade liberalization, and/or the concerns of domestic stakeholders regarding those negative effects, and that are either legally or factually linked to trade liberalization – have been a critical component of international trade policy since at least 1962. Over the years, however, flanking policies have changed. This Article argues that there is a heretofore unnoticed distinction between what I term first-generation flanking policies and second-generation flanking policies. Specifically, first-generation flanking policies target negative economic effects, or costs, of trade liberalization experienced within the enacting country. Trade adjustment assistance is the paradigmatic example. By contrast, second-generation flanking policies target non-economic costs that arise outside of the enacting country. Examples include the European Union's Carbon Border Adjustment Mechanism, Deforestation-free Products Regulation, and the United States' Uyghur Forced Labor Prevention Act. Because second-generation flanking policies directly target foreign activity, they often employ more trade-distorting policies – tariffs, imports bans, and associated administrative hurdles for imports – than first-generation flanking policies, which more often relied on domestic subsidies. Moreover, they reflect a significant reorientation of the limits of state authority in international trade law. Whereas authority to tax and regulate production in international economic law has historically been based primarily on a territorial link to productive activity, second-generation flanking policies target production but rely on a territorial nexus with consumption of goods and services.

This article examines the rationales for addressing sustainability and social inclusion in trade policy and the tradeoffs among imperfect institutional choices in doing so through ‘flanking policies’. It examines three types of negative spillovers or externalities implicated by trade: material, moral, and social/political. Section 1 defines terms and sets forth the argument. Section 2 typologizes the three categories of negative externalities and then highlights the challenges posed for flanking measures given the reciprocal nature of externalities. It respectively addresses environmental harms and labor and social inclusion concerns. Section 3 assesses different institutional alternatives for addressing negative externalities, dividing them between domestic measures targeted at protecting domestic concerns and international ones, such as package treaties. Section 4 shows how the concept of a flanking measure can be flipped, so that environmental sustainability and social inclusion become the core and trade measures become the flanking policies. Section 5 concludes.

Recent years have seen an increased focus on the implementation of Preferential Trade Agreements (PTAs). While the number of PTAs has risen remarkably since early 2000, data on the utilization of preferential tariffs under these agreements point out that some businesses have not gained access to all the benefits that PTAs can provide. When utilization rates are low, the impact of the agreement will likely differ from what was anticipated by ex-ante economic research. This paper conducts a dynamic Computable General Equilibrium (CGE) analysis of the expected impact of the EU–Japan Economic Partnership Agreement and compares a scenario that includes realistic preference utilization data with a standard scenario where all tariff liberalization is assumed to be fully utilized by businesses. The results show considerable differences between the two scenarios and illustrate the need to make the inclusion of credible utilization data standard practice in the modelling of international trade.

The obligation of stability generally requires host States to maintain a relatively stable regulatory framework to mitigate political risks facing foreign investments. It has played a significant role in international investment tribunals’ review of host States’ renewable energy transition policies. This paper critically reviews tribunals’ interpretation of the obligation with a particular focus on the Spanish cases involving renewable energy incentive schemes. It canvasses the two ‘dimensions’ adopted by investment tribunals in the interpretation of stability, namely the protection of legitimate expectations and States’ right to regulate for public purposes. Examining the contents of the two dimensions separately, this paper argues that legal stability should be disentangled from the notion of legitimate expectations and be assessed through the reasonableness of regulatory changes per se. It further argues that an intrusive interpretation of legal stability lacks legal and institutional bases; instead, more deferential standards should be adopted in the review of renewable energy transition policies.

In an era marked by the ‘technologization’ of modern warfare and the privatization of military supply chains, numerous items possess dual-use potential, capable of serving both civilian and military ends. Concurrently, governments increasingly view the acquisition of specific goods, materials, services, and technologies by rival states as a threat to their security. As a result, economic restrictions imposed on dual-use items, including export controls, have proliferated in recent years. These measures have elicited concerns regarding disguised protectionism and potential non-compliance with trade agreements. Central to the debate is the difficulty to strike a balance between addressing legitimate security imperatives and preventing economic protectionism. This article delves into the intersection of trade and security in the regulation of dual-use goods. It offers a focused examination of Article XXI(b)(ii) of the General Agreement on Tariffs and Trade (GATT) concerning trade restrictions on products destined for military use. The paper first reveals limitations of this provision in governing the regulation of dual-use items. Furthermore, it introduces the concept of a ‘purpose test’ provided by the provision as a safeguard against abusive invocation. Lastly, it sheds light on the challenge posed by the standard of proof issue, which complicates the review and mitigation of bad-faith invocations of security exceptions.

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 2022 Agreement on Fisheries Subsidies (AFS) is the culmination of over 20 years of negotiations within the WTO's Doha Development Round. Although it can be considered a small victory in the fight against declining fish stocks, the Agreement remains unfinished and underdeveloped. Of particular concern is the enforceability of the Agreement. While WTO Members recognize that the AFS was created to deal with a problem that has both socioeconomic and environmental implications, the Agreement relies on established WTO dispute settlement rules, which were created to resolve trade disputes. The paper assesses the difficulties of enforcing the AFS under these rules and considers additional provisions that could be included in subsequent negotiating rounds to ensure an effective and enforceable agreement. Recommendations cover different stages of the dispute settlement process and include alternative means of dispute resolution, measures to expedite proceedings, and retaliation procedures adapted to the AFS.

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.