This dispute concerned the imposition by Colombia of a ‘compound tariff’ on the importation of certain textiles, apparel, and footwear classified under Chapters 61 through 64 of Colombia's Customs Tariff. The compound tariff was composed of an ad valorem levy, expressed as a percentage of the customs value of goods, and a specific levy, expressed in units of currency per unit of measurement. The ad valorem component of the compound tariff was 10% for all products regardless of their value; the specific component depended on price thresholds for certain textiles, apparel, and footwear, imposing a higher levy on products imported below the price threshold set out in the corresponding Chapter of Colombia's Customs Tariff.

Free trade agreements (FTAs) are about far more than free trade. They are about national security. A trade deal may be ambitious in liberalizing or managing cross-border flows in goods, services, intellectual property (IP), and people, but to argue for or against an FTA solely along the axis of free versus managed trade is to miss another vital purpose – the deal can, and indeed should, advance national security. This article makes two points. First, the Trans-Pacific Partnership (TPP) exemplifies the possibility of enhancing the national security the United States, through containment of China and its ruling Chinese Communist Party (CCP). Second, the debate over the definition of state owned enterprise (SOE) is one among many illustrations in the TPP of the link between national security, trade, and containment. The 12 nations negotiating the TPP were aware of this link, and deliberated the definition of ‘SOE’. The TPP excluded the Middle Kingdom from the founding members, while the founders wrote the TPP rules to bind China if it subsequently joined the deal. Chinese SOEs were of concern to them, for bona fide national security reasons, and so also were legitimate sovereign interests in providing goods and services through their own SOEs. The evaluation by America and its 11 TPP partners, as to which entities should be included in the scope of SOE disciplines led to a set of clear rules.

This dispute concerned two measures of the European Union (EU): (i) the anti-dumping measure imposed by the EU on imports of biodiesel originating in Argentina; and (ii) the second subparagraph of Article 2(5) of Council Regulation (EC) No. 1225/2009 on protection against dumped imports from countries not members of the European Community (Basic Regulation). Argentina challenged various aspects of the anti-dumping measure on an ‘as applied’ basis, and challenged the second subparagraph of Article 2(5) of the Basic Regulation on an ‘as such’ basis.

This paper provides a legal–economic assessment of the WTO Panel Report in US–Animals, one of a growing list of WTO disputes arising due to problematic conditions under which an importing country closes and reopens its market after an infectious disease outbreak in an exporting country. The United States banned imports of beef from Argentina following a 2000 Argentine outbreak of highly contagious foot-and-mouth disease (FMD), a disease not found in the United States since 1929. The United States refused to relax its import ban, and Argentina filed a WTO dispute in 2012, more than six years after its last FMD outbreak. Our analysis starts with Argentina's claim that the gap between its first requests, in 2002, to restore its trading rights and no action by the United States as of 2012 constituted ‘undue delay’. We rely on simple insights from economic research on asymmetric information problems – moral hazard and adverse selection – to describe the difficulties facing the World Organization for Animal Health (OIE) and the WTO's Sanitary and Phytosanitary (SPS) Agreement in dealing with problems like FMD. Such an environment creates disincentives for socially efficient behavior that were clearly realized in this episode. The exporting country has an incentive to hide information on outbreaks and report being disease-free too quickly, and the importing country has no incentive to quickly undertake the costly effort of conducting the necessary inspections to restore the exporter's market access. Finally, we address the Panel Report's treatment of alleged discrimination both across different FMD-impacted countries and across FMD-impacted and non-impacted geographic zones within Argentina, and we touch on the Report's shift in approach regarding the obligation of the United States to take into account the special needs of developing countries such as Argentina.

In a case of first impression, a tribunal at the International Centre for Settlement of Investment Disputes (ICSID) rejected Claimants' novel legal argument that the Most Favoured Nation (MFN) clause in Article II of the World Trade Organisation's General Agreement on Trade in Services (GATS) enabled Menzies Middle East and Africa S.A. (MMEA) to access the offers to arbitrate under the Senegal–Netherlands and the Senegal–United Kingdom bilateral investment treaties (BITs).

Trade in agricultural products raises sensitivities, particularly when imports originate from a trading partner experiencing an outbreak of some type of agricultural disease. In this article, we explain why despite the negative externalities associated with diseased imports, an importing country is generally not permitted to ban such imports outright under WTO law. Rather, it is allowed to do so only under specific circumstances. We also highlight how the recent India–Agricultural Products ruling contributes to the jurisprudence of two issues concerning the SPS Agreement: the interpretation of international standards, and the relationship between the risk assessment and scientific evidence requirements.

This dispute concerned domestic content requirements (DCR measures) imposed under India's National Solar Mission. These requirements are imposed on solar power developers selling electricity to the government under the National Solar Mission. They concern solar cells and solar modules, which are used to generate solar power.

In recent years, China has enacted export restrictions on a range of minerals and other raw materials. They include export quotas, export duties, export licenses, and other administrative actions. Although such export restrictions have already been found to be inconsistent with China's WTO obligations, the practice persists. This article advances an explanation for why this is the case. It argues that the problem lies with the lack of retrospective remedies in WTO dispute settlement. Consequently, China is able to breach its WTO obligations temporarily with minimal consequence. Although such restrictions may have negative consequences for upstream extraction firms, China is able to implement the restrictions because several upstream firms are state-owned enterprises. As a result, China is able to utilize export restrictions on minerals and other raw materials effectively to foster the development of strategic emerging industries downstream. Given existing negotiating standoffs and domestic political constraints, this article suggests that it is unlikely that any potential WTO legal reforms will be enacted any time soon to address this problem.

There is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision in Peru–Additional Duty on Imports of Certain Agricultural Products is important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

On 8 July 2016, an International Centre for Settlement of Investment Disputes (ICSID) tribunal chaired by Professor Piero Bernardini, with co-arbitrators Gary Born (the Claimants' appointee) and Judge James Crawford (the Respondent's appointee), issued its award in Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay (Award). The Award dismissed all of the Claimants' claims and ordered the Claimants to pay 70% of Uruguay's legal costs and expenses.

The Anti-Monopoly Law (AML) of China came into effect in August 2008. In less than a decade, China has made remarkable strides to enforce this law; no other jurisdiction with a competition law system – over 130 to date – comes close to matching China's accomplishments in the first decade of its competition regime. However, China's progress in implementing competition policy remains uncertain.

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.

In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a ‘legitimate regulatory distinction’. In its recent compliance decision in the US–Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the US dolphin-safe tuna-labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB's application of the notion of risk-based regulation in the US–Tuna II dispute and finds the AB's reasoning lacking in coherence. Although risk analysis and calibration can in principle play useful roles in TBT cases, the AB needs to provide more explicit and careful guidance to WTO members and to panels to avoid the kind of ad hoc decision-making exhibited throughout the US–Tuna II dispute.

The dispute Argentina-Measures Affecting the Importation of Goods concerns a series of measures imposed by Argentine authorities on economic operators as a condition for obtaining import licenses. These measures were introduced with the goal of advancing the Argentine government's stated policies of re-industrialization, import substitution, and elimination of trade balance deficits. From a legal point of view, the least interesting feature of the dispute was the substantive compatibility of these measures with Article XI:1 GATT as they clearly constituted import restrictions. Identifying and classifying the measures involved, however, proved more challenging: based on vague policy guidelines, devoid of any legal basis, and consisting largely of wholly discretionary ad hoc action by the authorities, clouded in confidential obscurity, the measures escaped familiar categories and distinctions of WTO law. From an economic perspective, although Argentina's measures appear to have had no impact on its overall imports, they imposed large costs on foreign companies, as well as on Argentine importers and consumers.

On 16 March 2017, an International Centre for Settlement of Investment Disputes (ICSID) tribunal chaired by Professor Albert Jan van den Berg, with co-arbitrators Gary Born (Claimant's appointee) and Sir Daniel Bethlehem (Respondent's appointee), issued its award in Eli Lilly and Company v. The Government of Canada (Award). The Award dismissed all of Eli Lilly's claims and ordered it to pay the arbitration costs and 75% of Canada's legal costs and expenses.