Despite the promise of a well-ordered trading system and expansion of trade liberalization in the 1980s and 1990s, why is trade governance deadlocked? This puzzle is addressed by elaborating the meaning of “crisis of success” and what such a crisis looks like at the global trading order. I argue that the global trading system is revealing a “crisis of success” in that its current failure to ensure functional trade liberalization change is a result of the initial accomplishment in successfully undergoing a power shift in global trade governance especially at the WTO, marked by greater inclusion of new emerging powers. The success of the initial first phase of trade governance (1990s–2008/2012), especially in aiding an institutional power shift at the global level, created conditions for new problems, leading to a fragmented turn toward preferential trade agreements as well as trade-mediated conflictual strategies rather than sustainable peaceful change. The chapter’s dynamic historical argument delineates how early successes in global trade policies and governance led to maximalist peaceful change, followed by crisis leading to greater use of tariffs and ensuing US–China economic and trade competition. The mechanisms that underwrote the paradox of crisis despite institutional strength are elaborated.

This chapter identifies three distinct reasons why China took a middle-of-the-road position in the debate on the COVID-19 TRIPS waiver at the WTO. It also recounts the country’s more assertive position in the run-up to the adoption of the Ministerial Decision on the waiver. Drawing eight lessons from the international debate on the waiver and the subsequent Ministerial Decision, the chapter offers insights into the future role China can or will play in future international policy debates at the intersection of intellectual property and public health, including during the next pandemic.

The protection of intellectual property (IP) is a question of life and death. COVID-19 vaccines, partially incentivized by IP, are estimated to have saved nearly 20 million lives worldwide during the first year of their availability in 2021. The vast majority of the benefit of this lifesaving technology, however, went to high- and upper-middle-income countries. Despite 10 billion vaccines having been produced by the end of 2021, only 4 percent of people in low-income countries were fully vaccinated. Paradoxically, IP may also be partly responsible for hundreds of thousands of lives lost in 2021, due to insufficient supply of vaccines and inequitable access during the critical first year of vaccine rollout, most notably in low-income countries that lacked the ability to buy or manufacture vaccines to save their populations. The contributors to this book diagnose a number of causes for the inequitable distribution of life-saving COVID-19 vaccines, from misguided reliance on intellectual property rights and voluntary mechanisms to share knowledge and vaccines, to the rise of vaccine nationalism and vaccine diplomacy, to unequal global intellectual property institutions that disenfranchise low-income countries and continue to reproduce colonial era dependency by poor countries on high income nations for life-saving technologies. Global experts herein suggest several reforms to prevent such inequity in the next pandemic, including delinking vaccine development from monopoly rights in technology, enhanced legal requirements to share publicly-funded technologies in pandemic times, and investment in technology transfer hubs and local vaccine manufacturing capacity in low and middle-income countries.

Authors in this volume make a wide range of important proposals on intellectual property, innovation, and access. The question this chapter asks is: which of these might work in an actual pandemic? By tracing the first year of COVID-19 vaccine distribution, it shows the critical importance of aligning choice of policy mechanisms with political forces. Indeed, it argues that an openness paradigm may have been more effective not only for reasons of justice, but because it could accommodate populist politics and vaccine nationalism.

Informal institutions in global governance are generally expected to favor powerful states. According to conventional arguments, procedural justice is best secured through formal institutional rules that constrain power, while informal institutions reinforce power asymmetries. This chapter revisits this position and asks, how and under what conditions can informal institutions enhance the voice and influence of less powerful or marginalized actors in global governance? The chapter argues that while informal institutions are useful to powerful states because they remove constraints to individual action, they can also be useful to less powerful states to the extent that they positively support action through social-integrative effects. Specifically, interactions within informal groups generate two types of social effects – capacity-building and coalition-building – that can enhance the voice of developing countries and increase their control over collective decisions. The chapter illustrates the arguments by profiling informal groups in the global governance of trade and finance.

Chapter 1 is the introduction to the book. The chapter provides the background to the problem. The anti-dumping investigations are conducted with complicated procedural rules so that exporters cannot cooperate with the investigating authorities. Investigating authorities tend to inflate anti-dumping duties and use anti-dumping for protectionist purposes taking advantage of the non-cooperation. In this context, research questions are listed in connection to the main problem. The scope of the research is also set in Chapter 1.

Australia’s extraordinary economic boom continued throughout the period covered by this volume. By the end of 2005, the economy had enjoyed fifty-seven quarters of consecutive economic growth: Paul Keating’s ‘recession we had to have’ was a distant memory. Unemployment fell to slightly more than 5 per cent, the lowest rate for three decades. The government’s budget was enjoying record surpluses. Australia’s economic growth rate in the period was substantially above that of the average for the Organisation of Economic Co-operation and Development (OECD), the grouping of leading industrialised economies. Australia’s ranking in the OECD on per capita income rose from eighteenth in the early 1990s to eighth by 2005. Astute intervention by the Reserve Bank of Australia through the imposition of a marginal increase in interest rates in early 2005 appeared to have succeeded in deflating the housing bubble and in ensuring a soft landing for the economy.

Energy intersects with the environment at every stage of its life cycle. The energy supply chain can have adverse effects on nature and public health, including GHG emissions, air, land and water pollution as well the generation of harmful waste, among others. In order to reduce our dependence on high-carbon energy, more needs to be done to increase renewable energy generation and improve energy efficiency. As energy is involved in trade and investment projects, it is covered by the trade and investment branches of international economic law and regulated in these fields mainly by the rules of the World Trade Organization (WTO), the Energy Charter Treaty (ECT), regional trade agreements (RTAs) and international investment agreements (IIAs). This book aims to contribute to the existing scholarship by providing a comprehensive analysis of the energy–environment nexus under trade law and investment law, showing, where relevant, their similarities, differences or even (potential) conflicts at the energy–environment interface. It examines the legal foundations of the energy–environment nexus and associated issues regarding trade control, subsidies, technical standards, investment protection and technology policies.

Chapter 4 examines the wave of cases before international courts and tribunals (ICTs) against the most innovative tobacco control measures, focusing in particular on Philip Morris v Uruguay (ICSID) and Australia – Plain Packaging (WTO). It contends that the alleged ineffectiveness of the tobacco control measures was one of the key arguments of the claimants, who supported their claims by submitting a hefty amount of evidence. These evidentiary challenges presented novel and demanding tasks for adjudicators of ICTs. Against this backdrop, this chapter first analyses the nature and features of the evidentiary challenges to tobacco control measures (Section 4.2). Second, it reviews how the ICTs have assessed them, zooming in on the interpretation of flexibilities and the use of different sources of evidence (Section 4.3). The picture that emerges from this chapter is that of unnecessary, manufactured complexity. Shifting the discussions on tobacco control measures from the WHO/FCTC to trade and investment ICTs, the tobacco industry has effectively managed to masterfully use international law to its own advantage. It has reframed the debate, all while starting expensive and lengthy judicial proceedings that have taken almost a decade to be concluded.

Criticism is often made that the WTO Agreement has the potential to undermine human rights and accentuates the disruptive effects of globalization. Nevertheless, justice in sovereign terms is different from justice in human terms. This difference is perhaps best illustrated by means of a theory. This book puts forward such a theory. The theory posits that law does justice in order to sustain the good of the community. Justice in relation to the good can be thought about either according to the good’s distribution ex ante or its correction ex post after injury. The metric of distributive justice is equality, whereas the metric of corrective justice is fairness, or what is appropriate. This dualism is exhibited in thinking about WTO arrangements and is replicated in WTO law. In one mode WTO law is about the attainment of equality by means of obligations. In a second mode WTO law is about the attainment of fairness by means of rights. The two modes of law interact over time. Ultimately, they depend upon each other to generate a third, overarching structure in the form of interdependent obligations and rights manifested in a sui generis legal system.

This chapter focuses in particular on import restrictions and export controls as weapons of economic warfare as used against Russia, as opposed to the sanctions measures that are the focus of much of the book. These tools supplement the sanctions measures and help promote the same foreign policy ends through alternative means. For example, the chapter examines changes to Russia’s “most favored nation” status, and the resulting effect on imports into the U.S. from Russia. Import bans were also implemented on many items from Russia in multiple jurisdictions. Export controls of high-tech items are also discussed.

Chinese courts began to issue anti-suit injunctions (ASIs) in 2020 against litigants in foreign courts that had filed lawsuits to obtain a FRAND rate setting. Although these ASIs are a legal “transplant” from common law countries, they may also be viewed as “false friends” with significant differences from the jurisdictions from which they were imported. Several distinct vectors stand out: (a) China’s ASI practice and Chinese industrial policies are closely integrated into China’s domestic efforts to become an innovative power and standard essential patent (SEP) litigation norm setter; (b) China’s ASI efforts are part of a continuum of decades-long efforts to exert greater international influence, including in “judicial sovereignty” and global FRAND rate setting; and (c) the lack of transparency around China’s ASI practices, including the small and incomplete cohort of published cases, an apparent slow-down in recent ASI decisions, and Chinese traditions of experimentation in intellectual property (IP) legislation and practice, make it difficult at this time to determine how China’s ASI regime will further evolve into a system that is more compatible with other countries. This chapter more generally contributes to discussions around the appropriability of IP-related legal transplants into China by proposing that the differences between Chinese practices and practices in foreign countries may often be more significant than surface similarities.

The chapter discusses cybersecurity from the perspective of human rights protection. It first identifies adopting border measures as one approach to fulfilling a state’s duty to protect its citizens against human rights violations caused by cybercrimes. It then examines the tension between these FDI restrictive border measures and states’ investment protection and promotion obligations under IIAs. The analysis demonstrates a limitation in the current international law framework in which invoking the concept of national security remains the only means for states to address cyberthreats, which involves the risk of an accelerating shift to protectionism.

The chapter analyses how trade agreements balance liberalisation of digital trade with cybersecurity concerns. The chapter identifies the strengths, weaknesses, and ambiguities facing digital trade regulation in these agreements. As a way to address the tension between international trade law and cybersecurity, it examines security exception clauses in different trade agreements. It also analyses the efforts found in recent regional trade agreements to direct state parties to have regard to international standards concerning cybersecurity issues. It concludes that harmonisation of such standards would suggest the possibility of a greater coherence in cybersecurity governance.