Cover

Half-title

Title

Copyright

Contents

Figures

Tables

Contributors

Preface and Acknowledgements

Table of cases

1. International Court of Justice

2. Court of Justice (EU)

3. General Court (EU)

4. European Patent Office (EPO)

5. WTO Panels and Appellate Body

6. GATT

7. European Court of Human Rights (ECtHR)

8. European Commission of Human Rights

9. NAFTA

10. Other Abritration

11. Domestic Courts

(a) United States

(b) Canada

Abbreviations

Introduction: Fragmentation and coherence in international trade regulation: analysis and conceptual foundations

A. The challenges of fragmentation

B. Fragmentation in international law

C. Fragmentation in WTO dispute settlement

I. WTO law coordination

II. The role of bilateral and regional agreements

III. Decisions by regional international tribunals and res judicata

IV. Some tentative concluding remarks

D. Conceptual responses to fragmentation

I. The hermeneutical approach: systemic legal reasoning and policy coordination

II. The constitutionalist approach: systemic governance order and common values

III. A third way: The multilayered governance approach – a pragmatic synthesis

IV. The fundamental critique: missing societal foundations in international relations

E. Insights from legal theory

I. The nature and role of law

II. The benchmark of effective, efficient and legitimate legal systems

III. Coherence as an instrument to enhance effectiveness, efficiency and legitimacy

1. Formal consistency: the legalistic model of rules

2. Substantial coherence: the constitutionalist model of principles

F. Promoting coherence through multilayered constitutionalism

Bibliography

Part I: Constitutional issues in international trade regulation

1 The constitutionalisation of international trade law

A. Introduction

B. Key concepts and methdodological problems

C. How far has the WTO been constitutionalised to date?

I. Constitutional principles constraining Members

II. Democracy

III. Rule of law: constitutional principles constraining the WTO

IV. (Judicial) constitutionalisation of and through WTO dispute settlement

D. The WTO: private or public interest?

I. The communal approach to public interest

1. Public interest and private interest

2. A communal interpretation of Article XX GATT

II. The sovereigntist approach to public interest

1. `Public interest’ in limitation clauses and general exception clauses

2. A sovereigntist interpretation of Article XXI GATT: a self-judging obligation

III. The constitutionalist approach to public interest

1. International adjudication on sovereigntist clauses

2. A constitutionalist interpretation of exception clauses: accepting national `collective preferences’

IV. Preliminary outlook

E. Policy recommendations

I. Constitutional substance

II. Access of private actors to WTO dispute settlement and to domestic courts

III. A multilevel judiciary

IV. Political and legal accountability

V. Law- and decision-making

Bibliography

2 Reflections on modes of decision-making in the World Trade Organization

A. Introduction

B. Conceptualising a political system: legitimacy and accountability

C. Decision-making in the WTO from a political science perspective

I. Governance elements: member-driven, consensual and single-package oriented

II. The WTO Secretariat in international negotiations

D. Decision-making from a legal perspective

I. Material perspective

1. Distinctions in international institutional law

2. Distinctions in the WTO Agreement

3. Distinctions elaborated by Swiss constitutional theory

4. Further criteria in the legal and political science literature

II. Formal perspective

III. Designing flexible, non-consensual decision rules

E. The vertical dimension of decision-making: The role of corporations

I. Demand for trade policy: the missing exporters’ coalitions and the changing nature of import-competing group lobbying

II. Constructing an analytical framework for corporate trade policy interests

III. Comparing textile industries’ interest aggregation

F. Decision-making across competing authorities

I. The WTOs judicial interactions across intergovernmental organisations

1. Linkage through deference

2. Linkage through incorporation of other international arrangements

3. Presumptive exceptions and the adjudication of competing values

II. Various logics of horizontal interaction

G. Conclusions

Bibliography

3 Regionalism: moving from fragmentation towards coherence

A. Introduction

B. The reality of RTAs

I. Post-war waves of regionalism

1. The first wave of regionalism

2. The second wave of regionalism

3. The third wave of regionalism

II. Regionalism and multilateralism

III. A snapshot of today's regionalism

IV. Regionalism in the regions

1. Complexity multipliers

V. Spaghetti bowl in services and non-tariff barriers

C. RTAs and the multilateral trading system

I. What is wrong with regionalism?

1. The threat of pervasive regionalism

2. The threat to norms

3. Regionalism as Plan B

II. A return to the Great Powers world?

D. Towards coherence

I. WTO-led ideas enhancing coherence

1. WTO soft-law disciplines on RTAs

1. Negotiate voluntary best-practice guidelines for RTA disciplines for new RTAs and for modifications of existing RTAs.

2. More ambitiously, negotiate a level of RTA discipline that was in between that of Article XXIV and the Enabling Clause.

2. New sectoral free trade agreements

II. RTA-led ideas

1. Plurilateralise rules of origin and cumulation

2. `Anti-spaghetti’ clauses in RTAs

3. Development friendly ROOs and cumulation

4. Development-friendly cumulation

5. Switching to an -eitheror approach’ to rules of origin

E. Conclusion

Part II: Reforming specific areas of trade regulation

4 Reframing sustainable agriculture

A. Introduction

B. What is sustainable agriculture?

I. Doha Round problems with sustainable agriculture

II. The evolving debate on sustainable agriculture, trade liberalisation and food security

C. Empirical research on attitudes towards sustainable agriculture

I. Stakeholder surveys in Switzerland, New Zealand, Turkey and China

I. Stakeholder perception surveys in Switzerland and New Zealand

1. Agricultural policies in New Zealand and Switzerland

2. Survey results and interpretation

II. Stakeholder perception surveys in Turkey and China

1. Agricultural policies in Turkey and China

2. Survey Results and Interpretation

D. The political economy of sustainable agriculture

I. The basic policy insights from comparing the four cases

1. Switzerland and New Zealand

2. Turkey and China

II. Policy space and WTO disciplines

E. The development dimension

I. WTO Disciplines

1. Present rules

2. Doha

3. Impact

II. Impact of Swiss trade and agricultural policies on developing countries

1. Trade impact assessments

2. Free access for all products of least developed countries?

III. Food security and trade

IV. The potential of geographical indications for rural development

V. Mobilising science and technology to ensure endogenous growth and food security

1. Facilitating entrepreneurship and technological innovation in agriculture

2. Best practices

3. The role of public–private partnerships

F. Concluding remarks

References

5 Energy in WTO law and policy

A. Introduction

B. The current status of energy in WTO law (oil, gas, coal and electricity)

I. Oil, gas and coal

II. Electricity

III. WTO and other instruments of international energy law

1. Organisation for Economic Co-operation and Development (OECD)/International Energy Agency (IEA)

2. Energy Charter Treaty

3. Organization of the Petroleum Exporting Countries

4. Multilateral environmental agreements

5. Regional level: European Union (EU) and North American Free Trade Agreement (NAFTA)

IV. Role of government procurement

V. Unresolved and controversial issues

C. Agenda for reform

I. Towards a WTO Framework Agreement on Energy

II. The basic classification of energy and energy services

1. Trade in energy services

2. Reform of classification of energy services

III. Energy and the rules on subsidies

1. Renewable energy and the WTO law of subsidies

2. Emissions trading and subsidies: the experience of the European Union

IV. Energy production controls and export restrictions (OPEC)

1. Production controls versus export restrictions

2. Restrictions made effective through state-trading operations

3. Available exceptions

4. Lack of competition rules in WTO

5. Conclusion

V. Energy and government procurement as a climate change mitigation policy tool

1. Green public procurement (GPP) in the context of the Kyoto Protocol to the UNFCCC and the WTO Agreement on Government Procurement (GPA): the need for regulatory coherence

2. GPP and the trade concerns

3. GPP and the environmental exceptions

D. Overall conclusions

Bibliography

6 Developing trade rules for services: a case of fragmented coherence?

A. Not so straightforward: multilateral coherence and fragmented preferentialism in services trade

I. Context

II. Multilateralism

1. Understanding the GATS: legal commentaries

2. Disciplining non-discriminatory regulatory conduct

3. Disciplining discriminatory regulatory conduct

4. Investment rules for services

5. Managed mobility

III. Preferentialism

B. Tackling non-discriminatory regulatory conduct in services

I. The draft disciplines on domestic regulation

II. The unavoidable adoption of a necessity test

III. Promoting good governance through disciplines on regulatory transparency

IV. Concluding remarks and practical issues

C. Discriminatory regulatory conduct: how to assess `likeness’

I. The standard of `likeness’ in GATS non-discrimination

II. The supplier–service relationship

III. A Comparative approach to the interpretation of `likeness’ in GATS

D. Building coherence in international disciplines on investment in services

I. Introduction

II. Substantial disciplines on investment in services

1. MFN and NT

2. Fair and equitable treatment and domestic regulation obligations

III. Defragmenting international economic rules through coherent interpretation

E. Trade and labour migration agreements: a tale of two speeds

I. Introduction

II. GATS Mode 4

1. Immigration law caveat of the Annex on MONP

2. What can GATS Mode 4 learn from new-generation bilateral agreements on the joint regulation of migratory flows?

III. From request-driven Doha deadlock to a redesigned GATS Mode 4 horizontal schedule

1. Regulatory source country obligations on return and reliability of workforce?

F. Concluding remarks

Bibliography

7 Challenges of biotechnology in international trade regulation

A. Introduction

B. The impact of human rights

C. Intellectual property and competition

I. Human genetic inventions and the harmonisation of patent rules

II. Animal genetic resources, IPRs and genetic diversity

III. Research and patent law: an international research exemption?

D. Analysis of biotechnology risks

I. Risk analysis in general

II. Main approaches and differences

III. Reforming the SPS Agreement

1. Internationalising risk assessment

2. Domestic risk management

3. Socio-economic considerations as part of risk management

4. Strengthen the precautionary approach in the SPS agreement

5. The interplay of international risk assessment and domestic risk management

6. Introducing risk communication

E. Liability rules in biotechnology

I. The fragmentation of liability rules in biotechnology

1. Fragmentation in state responsibility

2. Fragmentation in state liability

3. Fragmentation of international civil liability rules

II. Harmonisation of liability rules?

III. Conclusions and recommendations

F. Conclusion

Bibliography

Part III: `Trade and…’ linkages

8 A call for a WTO ministerial decision on trade and human rights

A. Introduction

B. Creating the commitment: a decision on trade and human rights as a starting point and normative guideline

I. ...Recognising that human rights concerns are inextricably linked to free trade and convinced that trade liberalisation can foster the advancement of human rights

II. Reaffirming our commitment to respect, protect and promote the dignity of all humans

III. ...Acknowledging our legal obligations under international human rights law

IV. ...Concerned that international trades impact on some individuals has lessened rather than increased their enjoyment of basic human rights and that trade rules may form a hindrance to the full enjoyment of human rights and progressive development of human rights law

V. ...Aware that private actors can significantly affect the conditions necessary for fulfilling human dignity and reaffirming the duty of the State to protect all human rights from abuses by, or involving, business enterprises

VI. ...Accepting the United Nations’ human rights approach to trade, that `seeks trade law and policy that take into account the rights of all individuals, in particular vulnerable individuals and groups’ and `requires a constant examination of the impact of trade liberalization on the enjoyment of human rights’

VII. ...Noticing the Singapore Declaration's `commitment to the observation of internationally recognized core labour standards’ as well as the statement in the Declaration on Social Justice for a Fair Globalization of the International Labour Organization that the `violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage’

VIII. ...Noting that carefully drafted trade incentive regimes may advance the cause of human rights

1. Lessons from the US GSP

2. Lessons from the EU GSP including the case of Sri Lanka

IX. ...that the World Trade Organization shall fully respect the international law of human rights and support their full enjoyment

X. ...that the protection of human dignity shall be a guiding principle of the Organization

XI. ...that a Multilateral Agreement on Trade and Human Rights is to be negotiated, providing appropriate instruments to foster the cause of mutually supportive regimes, institutional and legal coherence and the full enjoyment of all human rights

C. Fulfilling the task: elements of a multilateral agreement on trade and human rights

I. Policy coordination

II. Dispute settlement

D. Specific annex agreements – some examples

I. Trade law and the right to food

II. Trade in services and human rights

III. Corruption, trade and human rights

1. The relationship between corruption and human rights

2. Corruptions effects on trade

3. Corruptions effects on the trade and human rights relationship

IV. Trade incentive regimes for human rights

1. The status quo of GSPs under WTO law

2. Developing criteria for GSPs under a multilateral framework

Bibliography

9 The protection and promotion of cultural diversity in a digital networked environment: mapping possible advances towards coherence

A. Introduction

B. The discourse of trade and culture

C. Incompleteness of the trade and culture discourse

I. The WTO framework

II. The UNESCO Convention on Cultural Diversity

D. Need to broaden the picture due to the new digital reality

E. Access as a new focal point of the cultural diversity debate

I. Access to infrastructure

II. Access to content

1. The availability and organisation of information

2. Intellectual property rights

F. Conclusions: from fragmentation to coherence?

Bibliography

10 Development and stability in the nexus between trade and finance

A. Introduction and motivation

B. Financial development

C. Financial stability

D. Coherence in the regulation of the international financial system

E. The global financial crisis and possible areas of reform

F. Summary and conclusion

Bibliography

11 The regulatory framework of international investment: the challenge of fragmentation in a changing world economy

A. The regulatory developments in international investment regulation

I. The spaghetti bowl at work

II. Key issues for achieving a coherent international framework on foreign investment

B. The economic development in the international investment arena since 2000

I. The regional dimension of FDI

II. The increase of FDI from emerging countries

III. The rise of FDI by state-controlled entities

C. Trade and investment developments under the European Union lens

I. Towards a European Union external investment policy

II. The Sino-European framework for investment

III. The European Union approach toward sovereign investments

D. Conclusions

Bibliography

12 Low-income countries and commodity price volatility

A. Introduction

B. International coffee markets and price volatility

I. Portfolio investment and price behaviour on futures markets

II. Price transmission along coffee chains

C. The effects of price volatility on producers

I. Tanzania coffee and cotton fieldwork: main findings

D. Exchange rate policy and macroeconomic management: the case of Zambia

I. Relevance of mine ownership

II. Exchange rate management

III. Commodity currency

IV. Towards a sustainable macroeconomic framework

E. Commodity price volatility, trade shocks, and compensatory finance

I. Policy, vulnerability, and the new debt sustainability framework

II. Proposal for a contingency debt sustainability framework

III. A case study of Uganda

F. Concluding remarks

Bibliography

Index