Prior to 2011, the Agreement on Technical Barriers to Trade had been somewhat neglected as a dispute-settlement mechanism, due in part to the lack of previous interpretation of the Agreement by WTO DSB Panels. In 2012, the Appellate Body adjudicated on three TBT disputes: US–Clove Cigarettes, US–Tuna II, and US–COOL, aiming to officially interpret and clarify Articles 2.1 and 2.2 of the Agreement by creating a distinct test for a measure's consistency with these Articles. This paper explores the relevant decisions of both the Panel and Appellate Body in the three disputes which led to the creation of the ‘legitimate regulatory distinction’ test. The substance behind this phrase, placed in context, is dissected along with the associated idea of ‘even-handedness’. The test attempts to simplify future interpretations regarding what will constitute unjustifiable discrimination, but at the cost of the necessary distinction between the GATT and the TBT Agreement being blurred. The result is a test which is incomplete and which fails to take account of the special circumstances surrounding the TBT Agreement.

The WTO adjudicating bodies were busy in 2014, as they issued 22 reports, a net increase of 15 reports when compared to 2013. In fact, the WTO was forced to hire additional staff to work on disputes, since the caseload overwhelmed the existing limited administrative capacity dedicated to dispute settlement.

Mutual recognition agreements present unique legal issues in the application of the most-favoured nation obligations flowing from Article I:1 of GATT 1994 and Articles 2.1 and 5.1.1 of the TBT Agreement. Mutual recognition agreements come in two types – those recognizing the equivalence of technical regulations, and those recognizing the equivalence of conformity assessment procedures. Both carry potential trade advantages for state parties, but both also carry the potential to create unintended trade consequences for state parties if combined with a broad application of the most-favoured nation principle. The WTO Appellate Body has touched on a number of the relevant legal issues in a series of reports culminating in the May 2014 EC–Seals decision, but many questions remain. This article seeks to provide states and practitioners with a guide to the issues and the way in which the Appellate Body would most likely address the remaining questions, based on the existing jurisprudence.

This article argues that the inclusion of provisions for the settlement of disputes in regional trade agreements enhances, rather than disrupts, the centrality of the World Trade Organization's dispute settlement system. Using a dataset that organizes exclusion clauses and special provisions for dispute settlement in regional trade agreements, the study develops a thematic typology that is used to examine the ways that disputes may be channelled between regional and multilateral dispute settlement institutions. This comparative empirical dimension offers a more accurate picture of the global contours of regionalization as they relate to the juridical aspects of trade governance, suggesting that the decentralization of dispute settlement inferred by the rapid development of regional bodies has been overstated.

Among my dearest memories of John Jackson and his wife Joan are the four weeks spent in Ann Arbor as a guest lecturer at the Michigan Law School in the mid-nineties, briefly after the entry into force of the WTO package of agreements. It was great to be away for some weeks from the relentless pressure of work in the WTO group in the Legal Service of the European Commission, which I was heading at the time. I taught a seminar on EC external relations, but also sat in on John's lectures on international trade law and naturally our discussions centered on the WTO and how the new dispute settlement system was going to work.

The China–Rare Earths decision of the Appellate Body addressed two main issues: (i) whether China's obligations not to impose export duties under its accession protocol are subject to exceptions under Article XX of GATT, and (ii) the scope of the exception for China's export quota measures relating to conservation under Article XX(g) of GATT. In accord with its China–Raw Materials decision, the Appellate Body found that there is no textual basis for the application of the Article XX exception to China's export duty obligations. This interpretation exalted a narrow contextual approach over an approach to interpretation that would focus on broader context, object, and purpose. The Appellate Body also approved the Panel's overall approach to determining the availability of the Article XX(g) exception. This approach focused on the design and structure of China's quota measure, but left unresolved important issues, including the extent to which non-conservation purposes may prevent use of the exception and the role of empirical evidence of effects in these determinations. While the Appellate Body found that there is no ‘even-handedness’ requirement in Article XX(g) itself, we argue that the chapeau's requirement of non-discrimination is an appropriate additional criterion for determining whether a policy with a target of reducing extraction of a natural resource satisfies the requirements of Article XX.

John Jackson's long, fruitful association with the General Agreement on Tariffs and Trade (GATT) was unique in the annals of international organizations. His 1969 book, World Trade and the Law of GATT, became the Baedeker for government officials, practitioners, and academics seeking an overall understanding of the trading system or an explanation of a particular GATT provision. Yet the uniqueness of Jackson's relationship to the GATT was not just his foundational scholarship; every international organization in the twentieth century spawned a scholarly community. The uniqueness came from his role as a teacher attracting graduate law students from around the world who traveled to Ann Arbor to study with him and then returned to their countries to take on leadership roles in international trade. These decades of students inspired by Jackson and educated by his synoptic understanding of trade law enhanced Jackson's influence on the GATT in a way that has no parallel in other agencies.

The EC–Seal Products dispute raises fundamental questions about the relationship between public morals and international trade. Can WTO members impose trade restrictions based on moral or ethical concerns? Under what conditions can these concerns trump existing trade liberalization commitments? The dispute was filed in 2009 by Canada and Norway against the EU, which in the same year had banned seal products from being imported and placed on its market. According to the EU, the policy was introduced in response to European moral outrage at the inhumane killing of seals. The EU seal regime included a series of exceptions. In particular, it allowed imports of seal products hunted by Inuit or other indigenous communities, as well as imports of seal products processed and re-exported by EU producers. This article discusses the Appellate Body's ruling in EC–Seal Products and some of the key legal and economic issues raised by this dispute.

Through detailed archival analysis, this paper examines states' voting rights and representation in the International Trade Organization (ITO), which remains an under-analyzed aspect of the post-war multilateral trading system. The paper shows that the US designers of the ITO preferred and pursued formal voting equality because they reasoned it served the institution's intended functions and purposes better than weighted voting. But, as the negotiations undermined US priorities, particularly on balance of payment (BOP) questions, the designers presented a proposal for mirroring the IMF's weighted voting at the ITO. They, however, returned to their original proposal of voting equality when the ultimate draft of the ITO reflected their key preferences without resorting to weighted voting. By closely tracing the drafters' thinking throughout the evolution of the negotiations, the paper contributes to understanding the design of multilateral institutions as well as US behavior in the creation of the post-war multilateral system.

Chapters relating to regulatory coherence or cooperation are likely to be significant features of new preferential trade agreements, including the Trans-Pacific Partnership (TPP). While the potential for harmonization of standards or institutional cooperation to impact on the regulatory autonomy of treaty parties has been well considered, this article focuses on those elements of regulatory coherence that relate to domestic processes for the development of regulations. It examines whether the adoption of ‘good regulatory practices’ in accordance with the TPP will help to ensure that measures states enact to protect non-economic interests (such as the environment or public health) are consistent with other key obligations of international trade and investment law. Although many elements of good regulatory practice mirror the criteria used to distinguish legitimate regulatory measures from disguised protectionism, there is no guarantee that a tribunal will come to the same conclusions as those reached during a domestic impact assessment.

Climate change poses a grave threat to the international community, thus prompting global action on all fronts. Various ‘green energy programs’ are being adopted by many governments. To the extent that governmental support is indispensable for the initiation and maintenance of these green energy programs, the SCM Agreement is directly implicated in this regard. Unfortunately, the agreement does not include any exceptions to these programs, even if the exceptions are undertaken due to the growing concerns of the global community. Under such circumstances, a practical solution should be found from within the existing framework, and be derived from an interpretation of the present SCM Agreement based on current jurisprudence. The collective jurisprudence of the WTO arguably stands for the proposition that certain renewable energy programs constitute ‘general infrastructure’ projects of a state, and thus are excluded from the financial contributions by the government under Article 1.1(a)(1)(iii) of the SCM Agreement.

John Jackson bestrode the world of international trade law like a Colossus. His 1969 treatise on World Trade and the Law of GATT was called the bible of GATT law. His 1977 casebook on Legal Problems of International Economic Relations created a new law school course and introduced thousands of students around the globe to international trade law. It was the leading international trade law casebook for decades, and his students went on to positions of responsibility throughout the world in governments, international organizations, and private practice. His analysis of GATT infirmities convinced certain influential governments to push for a new international trade organization, which eventually saw life as the World Trade Organization. It was a great honor for me to have been associated with John for over thirty years. Indeed, his 1985 invitation to join as a co-author of the casebook after my first year in law teaching undoubtedly saved me many years of drudgery as a corporate/securities law scholar. Thus, I am pleased to offer some thoughts on John's influence on dispute settlement under GATT and the WTO.

Safety standards can function as non-tariff barriers to trade. Canada is a large exporter of goods and so it has an interest in the regulation of safety standards, both at the multilateral level through its membership of the World Trade Organization (WTO) and, most especially, at the bilateral and regional level through its Preferential Trade Agreements (PTAs). Canada has signed PTAs with provisions that go beyond the obligations of WTO Members under the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade. This article analyses the nature and enforceability of WTO-plus provisions on sanitary and phytosanitary standards (SPS) as well as product standards (TBT) in Canada's PTAs, from the North American Free Trade Agreement (NAFTA) between Canada, Mexico, and the United States to the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. First, it finds that the inclusion of WTO-plus SPS and TBT provisions in Canada's PTAs is a relatively recent practice that is still in development. Only about half of Canada's PTAs contain WTO-plus SPS and TBT provisions and, those treaties that do, commonly concern institutions for regulatory cooperation and information exchange arrangements, without much commitment to harmonization. Secondly, it finds that nearly half of the SPS and TBT provisions in Canada's PTAs are unenforceable. They either are in a language that is too imprecise for enforcement or do not allow access to a dispute settlement mechanism. Thirdly, it finds that, by global standards, most of Canada's PTAs are modest in their approach to SPS and TBT issues, with NAFTA and CETA as key exceptions. The article concludes that the extent to which regulatory convergence occurs on safety standards for Canada is dependent more on political cooperation between the parties than on the nature and enforceability of SPS and TBT provisions in its PTAs.

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.

An agricultural price range system (PRS) aims to stabilize local prices in an open economy via the use of import duties that vary with international prices. The policy is inherently distortionary and welfare-reducing for a small open economy, at least according to the canonical economic model. We offer an explanation for why a government concerned with national welfare may nevertheless implement such a policy when faced with risk aversion and imperfect insurance markets. We also highlight open questions arising out of the Peru–Agricultural Products dispute for the WTO's Appellate Body to address in order to clarify how a PRS consistent with WTO rules could be designed. Finally, we discuss the possibility that a WTO member might resort to a free trade agreement (FTA) to preserve its flexibility to implement a PRS and how an FTA provision of this sort ought to be treated in WTO litigation.

I first came to know John Jackson in his role as a consultant to the international trade group at Arnold & Porter. Fresh out of law school and a novice in the field of international trade law, I quickly learned that John was the leading American expert on legal aspects of both GATT and domestic trade law issues. Only later did I come to realize that his stature in this regard was global. John's advice on GATT issues was sought after by academics and policymakers everywhere.

Considering the regulatory approval developments for cotton, maize, and soybean within the time period 2000–2013, this paper assesses the extent of asymmetry in the authorizations of new genetically modified organism (GMO) events between importing and exporting countries. The results show an increase in the asynchronous approval across the majority of country pairs. However, focusing only on commercialized events and considering only regulatory approval differences in which the importers are more stringent than the exporters, the asynchronous approval is considerably lower, and the result indicates that the major trade leaders have synchronized their approval status for GMOs over time. Some countries, such as Norway, Switzerland, Thailand, and Turkey seem to face the highest potential for trade disruption, while the opposite holds for Japan and South Korea.

This article assesses the regulation of government procurement in the WTO, specifically under the WTO Government Procurement Agreement (WTO GPA), the General Agreement on Tariffs in Trade (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Subsidies and Countervailing Measures (ASCM). It compares these findings from leading regional trade agreements (RTAs) with government procurement regulation, most notably the North American Free Trade Area (NAFTA) and the Treaty on the Functioning of the European Union (TFEU).