Issues surrounding the operation of state-owned enterprises in the international trading system is an understudied area and yet one of increasing importance, particularly given the size and significance of Chinese state-owned enterprises (SOEs). We start by situating the SOEs within the GATT and WTO frameworks and then summarize the main findings of a set papers prepared for an advanced law and policy seminar on SOEs held at Columbia Law School in the fall 2016.

Private standards are increasing in number, and they affect trade, but their status in the WTO remains problematic. Standards-takers are typically countries with little bargaining power, who cannot affect their terms of trade, and, thus, even if they possess domestic antitrust laws, will find it hard to persuade standard-setters to take account of their interests. Our concern is to bring more of these standards within the normative framework of the trade regime – that is, we worry that these private forms of social order can conflict with the fundamental norms of transparency and non-discrimination. The WTO membership has consumed itself in endless discussions regarding mundane, legalistic issues, and has not moved at all towards addressing the real concerns of developing countries. We discuss one aspect of the problem: How reclusive should the WTO allow product standards to be? We argue that the WTO should adopt a ‘Reference Paper’ that would encourage its members to apply WTO rules for adopting those standards that already come under the aegis of the WTO to private standards. In the absence of centralized enforcement, utopia in the WTO legal paradigm, transparency disciplines imposed on standard-setters is the best the WTO could offer to those who are negatively affected by private standards.

Civil society organizations are often seen as playing a crucial role in helping to mitigate the exclusion of weaker states, giving voice to marginalized communities, and raising environmental and developmental concerns within the trade system. The politicization and demystification of the global trade agenda by civil society also opens up space for a more diverse set of actors to influence trade negotiations. This article examines the evolution of the WTO secretariat's engagement with civil society within this context and argues that the dominant mode of engagement, as manifest in WTO Public Forums and civil society participation in ministerial conferences, is no longer fit for purpose. Rather it reflects an outmoded strategy that once served to underscore the existence and value of the WTO as an international organization and works to neutralize political contestation and publicly promote the benefits of free trade. It is now in need of reform.

On 1 January 1995, the WTO and its new and sophisticated dispute settlement system entered into force. We have thus already entered the twenty-first year of its life. Although the number of disputes has dropped somewhat over the last decade, there is no sign of weakening. Indeed, during 2015, the year we discuss in this volume, the WTO adjudicating bodies issued 16 reports, including three reports discussing the extent of the reasonable period of time.

In December 2012, Japan requested the establishment of a World Trade Organization (WTO) Panel regarding antidumping (AD) duties that China had imposed on high-performance stainless steel seamless tubes (HP-SSST). The European Union joined as a complainant in June 2013. To some degree, this dispute follows earlier ones involving China, as similar procedural and substantial issues were raised in previous cases. However, this was the first time that the WTO Panel rejected some important claims, only for those decisions to be reversed by the Appellate Body. Now that various rulings have clarified these legal issues, it remains to be seen if HP-SSST represents the last part of growing pains for Chinese authorities to learn about AD legal procedures.

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.

This Article provides an anatomy of Chinese state-owned enterprises (SOEs) by unpacking their various relations with different types of state organs. It shows that Chinese SOEs are embedded in a network composed of dense and complex links with the state. Shareholding ties, albeit important, are only one of the many relations with the state. This network perspective provides a rather comprehensive overview of the basic architecture of China's state-owned sector. It illustrates important governance institutions that are unobservable from the laws on the book and distinctive from international standards. It clarifies some SOE behaviors that appear puzzling when taking the individual firm as the unit of analysis. It also raises challenging questions on various areas of law in the context of globalization.

The General Agreement on Trade in Services (GATS) was adopted in order to establish meaningful liberalization rules, while preserving the right of Members to regulate. To that end, three provisions form the centerpiece of liberalization: market access (Article XVI GATS), national treatment (Article XVII GATS), and domestic regulation (Article VI GATS). Although these provisions contain different obligations, in certain conditions they can overlap. How this issue is resolved could undermine the delicate balance between liberalization and the right to regulate. As the GATS provides no guidance, the task of determining the applicable rules has been delegated to the World Trade Organization (WTO) adjudicating bodies. This paper examines how the three provisions have been interpreted, and analyzes the most applicable way to address the diversity of barriers to trade in services.

By acting as a trader, a government may influence the direction of international trade through its purchases and sales decisions without resort to other more direct means of trade regulation. The GATT recognizes that governments may choose to participate in international commerce in competition with private firms, but it does not leave them with a free hand when it comes to carrying out trading operations. The core rules regulating a State's trading activities are found in Article XVII and related provisions of the GATT. In the 70 years since their adoption, developments in both the GATT 1947 and the WTO have delineated a set of relatively limited disciplines rooted in the principle of non-discrimination, raising doubts about their effectiveness to address the kinds of problems caused by ‘State trading’ today. It remains true, however, that while State trading enterprises continue to operate across the world, and fundamental questions about the full reach and scope of the existing disciplines endure, opportunities to clarify their role in the modern trading system may well arise in the future practice of WTO Members.

This article explores the idea that the USDOC imposed anti-dumping duties on Vietnamese shrimp producers despite the fact that the surge of shrimp imports giving rise to the duties may have come from elsewhere in the developing world. We argue that Vietnam's shrimp exporters may have been subject to anti-dumping duties because Vietnam has ‘non-market economy’ (NME) status in the United States. This makes it possible to levy higher duties against Vietnamese firms. We make the point that it was particularly inappropriate to impose anti-dumping duties against the Vietnamese shrimp industry because this industry shows clear indications of being perfectly competitive, whereby firms cannot dump. This in turn raises the question of how the USDOC was able to construct a dumping case where apparently none could have existed. Use of the ‘zeroing’ methodology, in conjunction with Vietnam's NME status, turns out to be central to the answer. The broader issue is that anti-dumping duties are overused where safeguards would be more efficient. The analysis is relevant for the current controversy over China's NME status with a number of its trading partners.

The impact of the idea of ‘development’ in multilateral trade lawmaking is often reduced to the principle of ‘special and differential treatment’, which exempts developing countries from certain obligations imposed by the trade regime. The article shows that ‘development’ has always presented a much wider challenge to the vision of the trade regime championed by the major trading nations. The development discourse has conceived the trade regime's historical significance, the regime's aims, and the relationships among its members in ways that were often fundamentally at odds with the conception preferred by most developed countries. The article explores how the development discourse has informed lawmaking initiatives by developing countries throughout the history of the trade regime. While not all of these initiatives were successful or necessarily fruitful, they show that the pursuit of development in trade lawmaking has always been more than an effort to seek exemption from trade rules.

In the OECD countries, the decline of manufacturing and the employment implications have long been matters of concern. Recently, policymakers in several countries have set out to try and achieve reindustrialization. The servicification of firms is related to these concerns and aspirations. However, servicification, and particularly its role in trade policy, has received limited attention. I review micro-level evidence and discuss its implications. I find that imported, domestic and exported services are all important to contemporary firm competitiveness and participation in international value chains. Therefore, historic policymaking divisions between trade in manufactures and trade in services services, between export and import interests, and among modes of supply are becoming less relevant. I conclude by suggesting potential steps forward.

In 2007, the US reversed its long-standing policy prohibiting the simultaneous imposition of anti-dumping duties (ADDs) and countervailing duties (CVDs) against non-market economies. The EU followed the US lead and also began imposing simultaneous ADDs and CVDs. The practice, however, leads to double remedies, which are when a domestic subsidy is offset by both an ADD and a CVD. The WTO Appellate Body recently ruled that double remedies were inconsistent with the Agreement on Subsidies and Countervailing Measures and that the burden was on the investigating authorities to ensure that double remedies were not being imposed.

This dispute concerns the measures China took to implement the Dispute Settlement Body's rulings in China–GOES, which had found a number of violations with respect to China's antidumping and countervailing duties imposed on grain oriented flat-rolled electrical steel (GOES) imported from the United States. In this compliance proceeding, the United States claimed that the Redetermination issued by China's Ministry of Commerce (MOFCOM) continued to violate WTO law. At the center of the dispute were MOFCOM's findings that the US imports had the effect of suppressing and/or depressing the prices of domestic like products. While the Panel reached the conclusion that the MOFCOM findings were inconsistent with WTO rules, it did not clarify the criteria for determining such price effects. In this comment, we call for the adoption of a clearer and more objective standard for determining price suppression and price depression in antidumping and countervailing duty investigations, via the tools of economic modeling.

Conventional wisdom holds that international trade agreements can serve as a source of external pressure and credible commitment to overcome opposition and to lock in domestic economic reforms. This belief, however, underestimates the ability of politicians not only to circumvent these pressures, but to leverage international trade agreements to advance their own policy preferences – preferences that may be highly anti-reformist. Thus, trade agreements do not necessarily induce reforms and, in certain circumstances, they can even be counterproductive. Through an analysis of aggregate data and 40 interviews with senior politicians, government officials, and state-owned enterprise managers in Vietnam, this paper illustrates these insights by analyzing the political economy of SOE reform backsliding on the eve of Vietnam's accession to the WTO.

This article examines how fragmentation of the global trade regime into preferential agreements, built on a multilateral baseline of World Trade Organization (WTO) rules, affects trade governance. The analysis relies on 105 interviews with trade policy professionals in core WTO members and a conceptual distinction between ‘thick’ and ‘thin’ institutionalism to capture institutional changes in the global trade governance architecture. The WTO's thick institutionalism facilitates institutionalized interactions among members of the trade policy community that are essential for transparency and dialogue and the rule of law character of the trade regime. It secures the continued belief of trade policy professionals in the WTO's centrality in trade governance. The thin institutionalism of the network of preferential agreements spells the return to à la carte forms of trade governance and benefits those with the technical and political capacity to successfully navigate the fragmented governance architecture. Ongoing institutional transformations shift global trade governance away from rules-based back to more power-based forms.

Contemporary international trademark law is subject to a dynamic process. As communication and marketing strategies steadily evolve, enterprises seek to develop non-traditional signs as trademarks in international trade. Since non-traditional trademarks have received broad protection among WTO Members, the international registration of non-traditional trademarks has raised certain questions. This article focuses on issues of the registration of non-traditional trademarks from an international perspective. With a brief introduction to the new category of trademarks, Section 2 discusses whether non-traditional signs can constitute trademarks by analyzing the trademark definition that is stipulated in Article 15.1 of the TRIPS Agreement and introduces the current status of the legal protection afforded to non-traditional trademarks under the domestic trademark legislations in WTO Member states. Section 3 presents an in-depth analysis of Article 6quinquies of the Paris Convention and aims to address the significance of Article 6quinquies with regard to the international registration of non-traditional trademarks by comparing the essential difference between the two modes of international registration of trademarks. The conclusion provides strategical suggestions and practical guidance for both trademark applicants and competent authorities of WTO Members.

The Panel Report in Ukraine–Passenger Cars provides an opportunity to revisit an old debate over the role of safeguard measures in the WTO. With regard to the legal findings, the Panel followed the established jurisprudence in this area, and found a number of violations of the Safeguards Agreement. With regard to the economics, we delve more deeply into the economic and political background of the safeguards investigation. Ukraine was hit by the economic crisis shortly after its WTO accession that significantly liberalized import tariffs on passenger cars. Next, we offer a de novo look at the injury and causation issues in this case, and discuss the challenges of an industry reliant on offshored production that sees a safeguard as a mechanism to attract foreign direct investment (FDI) for production. We conclude with an assessment of the operation of the WTO's safeguards regime, along with some tentative suggestions for reform. Overall, our examination of the economic analysis by the investigating authority and the legal review by the WTO Panel raises questions about particular aspects of the domestic and WTO processes, but concludes that the system worked well in this case.

The African Growth and Opportunity Act (AGOA) is a non-reciprocal preferential trade programme that the US offers to 49 sub-Saharan African countries. President Obama's decision to extend AGOA, which was set to expire at the end of September 2015, for another ten years (2015 to 2025), was highly controversial. The Extension and Enhancement of AGOA Act, signed into law by President Obama, on the 29 June 2015, had thus included many new provisions to incorporate the views of the US Congress on the implementation of the ten-year extension and the future trajectory of AGOA. In this paper, the new Extension and Enhancement of AGOA Act is analysed to elucidate the new and additional powers that the new AGOA Act provides the US Congress, the US Administration, and US business lobbies, and the implications of these changes for sub-Saharan African countries. At least three new trends in the 2015 AGOA Act can be identified: payment for preferences, institutional attrition, and a shift to reciprocity. These trends, it is argued in this paper, are potentially contrary to a more mutually beneficial relationship between the US and Africa. The paper offers some reflections on the future of AGOA.

The two central issues in China's accession to the World Trade Organization (WTO) were its economic size and the large role the state had played in economic decisions – the treatment of State-Owned Enterprises (SOEs) as central to addressing the latter point. While the Protocol of Accession imposed obligations on China that went beyond what was required of other WTO members, it has not been effective at resolving concerns about Chinese SOEs. This demonstrates, in part, the limitations in using the WTO as a vehicle to promote economic reform.