This article aims to account for the variation in the time it takes for WTO Members to bring compliance following adverse panel rulings. It seeks to answer the question: under what conditions do defendants swiftly implement adverse rulings of WTO panels? I demonstrate that defendants are more likely to comply without delay when the targeted measures involve firms that are integrated into regional and global value chains. When a dispute touches upon the interests of these firms and targets import-restricting measures, they are triggered to mobilize and press for compliance because they rely on foreign imports. In effect, the mobilization of these firms changes the domestic political conditions in favor of timely implementation. I show the plausibility of my argument in a comparative design with four case studies in which the US and Canada acted as defendants in WTO disputes. I control for a number of political factors and also consider legal sources of variation – i.e. the complexity of the form of implementation – that may impact WTO Members’ record of compliance.

The WTO adjudicating bodies faced some very tough questions in 2016: the status of non-market economies, the consistency of policies aiming to address tax evasion with the WTO, and the clash between environment and trade policies were all on the menu. Old issues, like the consistency of zeroing, resurfaced as well, albeit with a twist this time, since the Appellate Body (AB) had to address the question whether zeroing is consistent with the WTO when practiced in the realm of a methodology that was so far untested.

There is evidence that some countries negotiate trade agreements during economic downturns. Why would a leader do this? We argue that political leaders can gain from such agreements because of the signals they send to their public. The public are less likely to blame leaders for adverse economic conditions when they have implemented sound economic policies, such as signing agreements designed to liberalize trade and prevent a slide into protectionism. In hard economic times, leaders – especially those in democratic environments – may find that trade agreements are a useful way to reassure the public. Since majorities in many countries around the world view trade favorably, leaders may see agreements that prevent them from adopting protectionism as a way to maintain support. We evaluate this argument by analyzing preferential trade agreements (PTAs) formed since 1962. We find that, on average, democratic countries are more likely to form PTAs during hard economic times. We also find that democratic leaders who sign PTAs during downturns enjoy a longer tenure than their counterparts who do not sign such agreements.

In 2009, the EU imposed anti-dumping duties on aluminum foil imported from Armenia, Brazil, and China for five years. The final determination resulted in the imposition of definitive anti-dumping duties of 13.4% (Armenia), 17.6% (Brazil), and 6.4–30% (China). This paper quantifies the direct and indirect effects of the EU anti-dumping duty on EU and US imports from targeted and unaffected countries using detailed data for the years 2006 through 2012, and controlling for exports of all products within the aluminum sheet, plate, and foil manufacturing industry from all countries. The findings point to the trade destruction, trade depression, trade diversion, and trade deflection effects typically found in the existing literature. However, the uniqueness of this case lies in the fact that the Armenian exporter is a subsidiary of a Russian firm. And as Armenia's exports to the EU declined, they expanded rapidly to the US. At the same time, the US imports from Russia, a country not directly touched by the anti-dumping ruling, declined dramatically, and were diverted to the EU. This points to the potential ineffectiveness of anti-dumping duties in the presence of multinational corporations with production facilities located across countries differentially impacted by anti-dumping duties.

This paper presents a legal–economic analysis of the Appellate Body's decision in EU–Biodiesel (Argentina) that the WTO's Anti-Dumping Agreement (ADA) does not permit countries to take into account government-created price distortions of major inputs when calculating anti-dumping duties. In this case, the EU made adjustments to the price of biodiesel's principal input – soybeans – in determining the cost of production of biodiesel in Argentina. The adjustment was made based on the uncontested finding that the price of soybeans in Argentina was distorted by the existence of an export tax scheme that resulted in artificially low soybean prices. The Appellate Body found that the EU was not permitted to take tax policy-induced price distortions into account in calculating dumping margins. We analyze the economic rationale for Argentina's export tax system, distortions in biodiesel markets in Argentina and the EU, and the remaining trade policy options for addressing distorted international prices. We also assess whether existing subsidies disciplines would be more effective in addressing this problem and conclude that they would not.

The expansion of the Information Technology Agreement (ITA) in 2015 was the most successful attempt at trade liberalization under the auspices of the WTO since its inception in 1995. Its success makes it a template for other trade liberalization efforts. In this article, I explain how the ITA expansion came to pass and explicate the contours of the template it provides. I highlight four factors that were crucial to the ITA expansion's successful completion: a narrower scope without a single undertaking approach, a negotiating group that contained many but not all WTO members, a focus on tariffs rather than non-tariff barriers, and avoiding a nationalistic opposition. I conclude by discussing what lessons these factors and the ITA expansion suggest for other ongoing trade negotiations such as the Environmental Goods Agreements (EGA).

This article explores the concept of ‘regulatory convergence’ in the context of the evolving literature on legal convergence and divergence. Such a concept has emerged as an overarching horizontal discipline in the latest generation of preferential trade agreements and aims to reduce unnecessary regulatory incompatibilities between countries in order to facilitate cross-border trade and investment.

Differing approaches to regulatory convergence found in recently concluded PTAs, or are currently under negotiation, are examined, with a special focus on the ‘regulatory cooperation’ approach embedded in CETA, the path of ‘regulatory improvement’ taken by members of the Pacific Alliance, and the ‘regulatory coherence’ track included in the TPP. We also refer to the TTIP negotiations conducted between the EU and the US.

The article offers a broad understanding of the different ways in which regulatory convergence is implemented across PTAs, and the legal complexities resulting from the ambiguity of the concept. It further describes the scope and effects of the different mechanisms used to achieve regulatory convergence, on both substantive and procedural matters.

Pessimism abounds in international economic law. The World Trade Organization (WTO) faces an uncertain future following its Ministerial Conference in Nairobi in 2015. International investment law is under attack in countries around the world, while mega-regional agreements such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership are beset by world events, from the United States’ federal election to the unexpected Brexit outcome. Yet the appetite of numerous States to continue forging plurilateral trade and investment deals provides some cause for hope. Viewed alongside other institutional developments including consensus-building work at the United Nations Conference on Trade and Development and the United Nations Commission on International Trade Law, the potential arguably now exists for credible movement towards multilateral rules in investment law. While the WTO's current negotiating stalemate highlights the difficulties in reaching agreement among 164 Members, international trade law offers lessons for working towards multilateralism in the international investment law field. Alongside informal discussions about a world investment court, mega-regionals provide a vehicle for future multilateral investment rules, particularly through the Comprehensive Economic and Trade Agreement between Canada and the European Union, and the Regional Comprehensive Economic Partnership currently under negotiation in Asia.

China's unique economic system poses increasing challenges to the world trading system and attracts growing academic and policy debate. WTO members have frequently resorted to antidumping measures in dealing with price distortions caused by the Chinese government's influence on the economy. The Appellate Body's decision in the recent EU–Biodiesel dispute starts to remove the flexibility of condemning state intervention and price distortions under the WTO Anti-Dumping Agreement through antidumping measures. This decision, read with the relevant WTO jurisprudence on the ‘ordinary course of trade’ test and subsidies, suggests that price distortions resulting from state intervention should be addressed under other WTO rules. Therefore, it is necessary for WTO members to shift their focus to, and explore the capacity of, the other rules to overcome the challenges arising from China's state capitalism.

Since 1998, non-state actors have had access to submit an ‘amicus curiae’ brief to the WTO DSM. Like other forms of non-state actor involvement in the WTO, amicus curiae access has been controversial. Despite this controversy, non-state actors have made use of this access and submitted amicus curiae briefs. This article asks: What has come of these briefs once they are submitted and what explains how amicus are treated by the DSM? This article empirically maps amici in all disputes from 1998 (after amicus access was first recognized) through 2014, arguing that amicus access is conditioned by a combination of political and legal constraints faced by the WTO panels and AB. In particular, whether the content of an amicus is considered hinges on it having the endorsement of a disputing party and whether its consideration interferes with the WTO DSM's reputation for coherence. In all, these findings have implications for the debate over whether amicus curiae access is good or bad news for the WTO and non-state actor involvement.

India–Solar Cells is one of a growing number of WTO disputes that highlight the continuing tensions between climate change polices (and renewable energy manufacturing initiatives in particular) and established multilateral trading rules. The United States alleged that Indian policies discriminated against foreign solar cell suppliers operating in the Indian market. The Appellate Body broadly rejected India's arguments to justify the measure either under Article III.8 public procurement derogations or as a general exception under ‘short supply’ and ‘compliance with laws and regulations’ provision of Article XX of the GATT. We argue that the Appellate Body was correct both on legal and economic grounds. The case does highlight the continuing need for clarity about the allowed parameters for climate change policies within the multilateral trade system.

This paper examines the supply-side determinants of international trade in crops that are intensive in genetically modified organisms (GMOs). The theoretical framework is a variant of the Heckscher–Ohlin model, which we estimate using cross-country data for 1995 and 2010 to examine soybeans, maize, and cotton trade. The data include measures of country land endowments, which we disaggregate into GMO and non-GMO components, as well as recently released measures of GMO regulations. Findings show land endowments are a primary source of comparative advantage in GMO intensive industries before and after the advent of GMOs. Further, an increase in a country's allocation of land to GMO crops has a positive effect on her net exports in GMO intensive industries. This positive effect occurs both across countries and time. Finally, a country's GMO regulations have a negligible effect as a supply-side determinant of comparative advantage. However, a country's decision about whether to adopt GMO technologies does matter to trade. These findings are robust with respect to a variety of considerations.

In US–Washing Machines, the WTO Appellate Body (AB) extended the prohibition of zeroing to the so-called exceptional (or W-T) methodology, where the dumping margin is established by comparing the weighted average normal value to export price of specific transactions. Given that the exceptional method was the only method under which the AB had not definitively rejected zeroing, this dispute may have hammered the last nail in the coffin of zeroing. Or, maybe not. The AB did not address a key issue, namely: What is the evidentiary standard that an investigating authority must meet in order to have legitimate recourse to W-T? In addition, the AB's suggested approach to aggregating dumping amounts across targeted and non-targeted groups may produce zeroing-like outcomes even if the authority does not resort to zeroing. It seems inevitable that future disputes will be required to address these issues, since history shows that at least some investigating authorities are gearing towards using this methodology ad nauseam. The AB has left zeroing to die another day.

Recently, the World Trade Organization (WTO) granted Mexico the right to retaliate against the US as a compensation for losses related to the US ‘dolphin-safe’ label (May 2017). Despite the diversity of works on the issue, few analyze the changes in the US approach to dolphin protection as a result of international and domestic pressures related to the tuna–dolphin controversy. This paper seeks to understand such changes and their consequences using the process tracing method. It shows that (1) the US approach to dolphin protection passed through a process of policy change motivated by trade and diplomatic concerns mediating dolphin protection, and that (2) it was partially reversed in court as an outcome of the concessions offered to get the policy change approved. Finally, the paper argues that (3) this process led to the lock-in of the US ‘dolphin-safe’ label and to its expansion in response to recent WTO decisions.

The 2014 Halal Product Assurance Act (Halal Act) is the first law in Indonesia requiring mandatory Halal certification and labelling. Local and foreign business entities, while in agreement that Halal assurance through certification and labelling is important for Muslim consumers, have expressed their anxiety over whether such requirements will mean extra costs, particularly for small and medium enterprises. At the same time, the mandatory labelling regime involves several WTO issues under the TBT Agreement, which raise questions regarding Indonesia's compliance with its obligations. As a defence, Indonesia could argue that its mandatory halal labelling measure falls under the exception for protecting ‘public morals’. The WTO panel in the US–Gambling dispute noted that the meaning of ‘public morals’ and ‘public order’ varied depending on a range of factors, including prevailing social, cultural, ethical, and religious values. Should the WTO allow all types of moral and religious belief, even if they restrict trade? How can public moral policy objectives be applied in ways that do not violate WTO law? This paper seeks to examine the WTO consistency of the new Indonesian Halal Act, and whether the public moral objective underlying mandatory halal certification/labelling can be defended as an exception in the context of the TBT Agreement.

As an integral part of the WTO trading regime and in line with the international trend of antitrust control, TRIPS harmonized intellectual property protection with competition in mind. However, diverse national FRAND enforcement practices that take either a contractual or an antitrust approach challenge TRIPS integrity. While personal property recognition for SEPs lends constitutional support to the contractual approach to FRAND enforcement, private property's in-built limitation warrants a balance with the antitrust approach for needs from others. A critical examination of the TRIPS conclusion and the analytical structure of TRIPS provisions reveal that TRIPS obligation against anticompetitive practices is imperative. The imbalance of harmonized TRIPS with un-harmonized FRAND practices reflects TRIPS birth defect and challenges TRIPS integrity. To improve balance of rights and obligations in international trade and to ensure innovation and technology dissemination that is conducive to social and economic welfare, the paper calls for a contract–antitrust balanced approach to FRAND enforcement and the resumption of WTO's competition negotiations.

There has been increasing litigation in the WTO on environmental issues in recent years, much of it about fishing. Two cases, Chile–Swordfish and Faroes–Herring, brought to light the potential for conflict between trade and fisheries law through the imposition of port state measures by WTO members to prevent illegal, unreported, and unregulated (IUU) fishing, although both cases were settled before reaching Panel stage. Port state measures aim to combat IUU fishing by allowing countries to close their ports to IUU fish. This includes using trade measures and trade-related measures, such as import bans and transshipment bans, which may violate WTO law. The potential for conflict is even more acute now that the Port State Measures Agreement (PSMA) has come into force. This paper takes as its study Faroes–Herring, where the Faroes challenged certain EU regulations aimed at preventing IUU fishing through the use of port state measures. It examines whether these regulations comply with WTO law, and makes recommendations as to how a Panel or Appellate Body can resolve this type of dispute. Specifically, it focuses on ways in which international fisheries law can be incorporated in this process to avoid a conflict between international trade and fisheries law.

Can a WTO Member discriminate against foreign suppliers of services located in jurisdictions that refuse to share information with a government to permit it to determine if its nationals engage in tax evasion? Does it matter if the Member uses standards developed by an international body as the criterion for deciding whether to impose measures? In Argentina–Financial Services, the WTO Appellate Body held that services from jurisdictions that share financial tax information may be different from services provided by jurisdictions that do not cooperate in supplying such information. It overruled a Panel finding that measures to increase taxes on financial transactions with non-cooperative jurisdictions were discriminatory. We argue that the AB reached the right conclusion on the basis of the wrong arguments; that it missed an important opportunity to clarify what WTO Members are permitted to do to enforce their domestic regulatory regimes; and increased the scope for confusion and future litigation by considering that the likeness of services and service suppliers may be a function of prevailing domestic regulatory regimes.

This article discusses ways in which the General Agreement on Trade in Services (GATS) and post-GATS free trade agreements may limit the EU's ability to regulate privacy and personal data protection as fundamental rights. After discussing this issue in two dimensions – the vertical relationship between trade and national and European Union (EU) law, and the horizontal relationship between trade and human rights law – the author concludes that these limits are real and pose serious risks.

Inspired by recent developments in safeguarding labour, and environmental standards and sustainable development, the article argues that privacy and personal data protection should be part of, and protected by, international trade deals made by the EU. The EU should negotiate future international trade agreements with the objective of allowing them to reflect the normative foundations of privacy and personal data protection. This article suggests a specific way to achieve this objective.

A mega-RTA such as the planned Trans-Pacific Partnership (TPP) or the Regional Comprehensive Economic Partnership (RCEP) may overlap another RTA, with the result that some of the parties to the mega-RTA's overlapping RTA may become common parties, while others may remain as single-agreement parties. If the mega-RTA provides rules of origin based on the change in tariff classification (CTC)-with-exception criterion such as yarn-forward rules, the rules of origin will become more restrictive with respect to the imports of the excluded intermediate goods from the single-agreement parties after the formation of the mega-RTA than before, thus failing to meet the requirement under GATT Article XXIV:5. The exclusionary rules of origin of the mega-RTA draw the trade away from the single-agreement parties, causing ‘fracture’ in the mega-RTA's overlapping RTA. As a legal remedy to the problem, the mega-RTA should eliminate the restriction from the CTC-with-exception criterion by adopting the rules of origin based on the non-exclusionary criteria such as the value-added or the CTC criterion that does not presumptively exclude the use of certain non-originating intermediate inputs.