WTO Framework Research Articles

Competition provisions in regional trade agreements: The Indian experience

The proliferation of regional trade agreements (RTAs) is one of the defining features of the present day world trading system. This burgeoning of RTAs is accompanied by another process of “deeper integration”. Compared to the older genre of RTAs, the recent RTAs cover a wider range of obligations than those contained within the WTO framework like environmental and labour standards. Among these, competition policy is the most covered topic in recent RTAs. India is not an exception to this trend, and increasingly many Indian RTAs contain provisions relating to competition policy that impose a wide range of obligations on her. Broadly, these RTAs may be classified under three heads: (1) RTAs that contain a separate chapter on competition policy; (2) RTAs that contain obligations with regard to competition policy in the context of the service sector and (3) RTAs that contain competition related objectives. The presence of these provisions in Indian RTAs is intriguing as India was at the forefront of opposing the inclusion of competition policy within the WTO framework. Insistence by the hegemonic partner, reduced negotiating power in the bilateral context, and the give and take policy adopted during the negotiations could be some possible explanations for this change in stand. Undertaking obligations in the field of competition policy may not be in the interest of a developing country like India as it can significantly reduce the crucial industrial policy space.

Soft or Hard Law

Historically, international regimes regulating maritime transport have aimed to develop uniform rules. However, these rules are relatively static and have been implemented differently based on different national understandings in a de-centralised, State-based manner. This article argues that greater global uniformity in maritime transport rules could be achieved through the framework of the World Trade Organization (‘wto’). The wto could update these rules dynamically, and could also enforce them. A wto-based negotiating forum could generate substantive, uniform seaborne cargo rules in two ways. Through a selective referral approach, it could incorporate the existing rules — including the un-administered rules — within the wto framework. It could also develop new uniform rules. The wto also provides international communities with a quasi-judicial procedure — the wto dispute settlement mechanism (‘dsm’) — which could also be used to protect and promote the global uniformity of seaborne cargo rules. Such an approach could further reduce divergent interpretations of uniform transport rules by providing a centralised system for the implementation of those rules.

The International Trading Regime and the Regulation of Trade in Energy Resources. Is Reform Necessary and is a New Energy Agreement within the WTO Framework the Way to Go?

Although the WTO does not address energy as a distinct sector, numerous suggestions have been made, so far essentially in scholarly writings, to adopt a sectoral agreement dealing with energy issues. This contribution argues that a new Energy Agreement (EA) within the WTO framework would raise more problems than it would offer solutions. If such an Agreement were to be added to the WTO framework, several fundamental choices would have to be made in advance, e.g. will this new EA be plurilateral or multilateral; what will the scope of its provisions be, etc.? It may be argued that the sectoral approach is not new in itself, as it has already been used on several occasions. However, a comparative teleological analysis of these agreements proves that the issues in these sectors are substantially different from those concerning trade in energy resources. The model of existing sectoral agreements is therefore hard to transpose to the energy sector. Even if new rules were to be designed and Members reached an agreement as to the scope ratione materiae and ratione personae of such an EA, its integration into the WTO framework would have to be carefully regulated. Given all these complexities, combined with the current difficulty in reaching consensus, proposals for an Energy Agreement may hit a dead end, at least for several years to come. However, there are less problematic alternatives, such as the addition of an Annex to the WTO Agreement, a Reference Paper, or the adoption of an Interpretation decision. Arguably, all these solutions offer only partial adjustment of the existing framework. Major adjustment efforts will however prove to be futile, as most of the existing provisions are already either adjusted to deal with energy issues or sufficiently flexible to allow for an interpretation that will take into consideration sectoral specificities.

The Illusory Reference of the Transitional State and Non-Market Economy Status

Transitional economies have steadily become a very substantial portion of the World Trade Organization’s (WTO) membership—comprising around two-thirds of new members since 1996—and a very large proportion of the States currently negotiating accession, but they have been subject to different and more onerous treatment than their fellow ‘non-transitional’ members. Increasingly, the differential treatment of transitional economies under the WTO regime is causing both generalized conflict and specific WTO disputes. This article argues that designations such as ‘transitional economy’ and ‘non-market economy’ are flawed in the binary approach that they establish in relation to the notion of the market. While they serve useful political objectives for some WTO members, they are unsatisfactory from a legal and theoretical perspective. In the longer term, this is an untenable position and one that should be reconsidered for the sake of transparency within the WTO framework. We conclude that the use of these dichotomies in the WTO context requires reconsideration.

The TISA Initiative: An Overview of Market Access Issues

The plurilateral negotiations on a Trade in Services Agreement ( TISA) have attracted much attention in trade policy circles. Policy and economic implications are intensely debated given the number and economic importance of participants. This article aims to provide insights into the market access issues arising in such negotiations. Should TISA negotiations result in participants exchanging the best commitments they have so far undertaken in their preferential trade agreements (PTAs) - a reasonable starting point -,TISA market access commitments would go well beyond commitments under the General Agreement on Trade in Services (GATS) and services offers tabled in the Doha Round. While this would be in itself a significant outcome (especially in terms of predictability and stability), we also highlight, however, that the real economic benefits would be reduced by the fact that a number of participants have already exchanged significant concessions amongst themselves through bilateral PTAs. Further, and more importantly, exchanging 'best PTA' commitments would not meet the participants' most important export interests. These have often remained unaddressed in many of the previous bilateral negotiations or involve countries not currently participating in TISA. Addressing better these export interests would require going beyond an exchange of 'best PTA' commitments among TISA participants - with the more difficult policy and negotiating decisions that this implies - and/or seeking to expand the group of participants. We also discuss the different forms that such a plurilateral agreement may take vis-à-vis the WTO framework.

Country Positions and its Implications on Negotiations of Multilateral Framework on Investment: Review of Pre-Cancun Period

The paper provides a summary of the country positions taken by the WTO members with regard to TRIMs and it covers a period of 1995 to 2003. In the Cancun Ministerial investment with two of other Singapore Issues were dropped, due to lack of consensus. In the recent year the TRIMs related issues are increasingly becoming a part of the various the free & regional trade agreements (RTAs). Many of these RTAs have a separate agreement or an article on investment issues, details of which needs to be examined. Especially, in the context of those that are arrived between partner those of RTAs which are between developed country and developing country. Erosion of the bargaining power is expected to occur when these individual RTAs are being signed. To understand to what extent the erosion has already happened we need two kind of information one, with respect to the RTAs and details on investment related Articles and secondly what were the multilateral submissions (within WTO framework) individually or as a group. The second information is examined in detailed manner in the sections below.

Challenges for Trade in Services Liberalization of ASEAN Economic Community

Trade in services liberalization of ASEAN has been implemented under the General Agreements on Trade in Services (GATS) of WTO and ASEAN Framework of Agreements on Services (AFAS). There are three main objectives of AFAS. First, is to enhance cooperation in services among members in order to increase the efficiency and competitiveness as well as distribute production capacity and supplies of services both within and outside the region. Second, is to get rid of substantially restrictions of trade in services among members. Third, is to enhance further liberalize trade in services by expanding the depth and coverage of liberalization.

Antidumping in Emerging Countries in the Post-crisis Era: A Case Study on Brazil and China

Traditional users and new users of antidumping are pursuing different paths. Nowadays, the trend of active use of antidumping tools has shifted from the developed countries towards the developing countries. The antidumping measures imposed by emerging economies tend to be more frequent and severe than those imposed by developed countries and South--South protectionism also emerges. Even though emerging countries like Brazil and China remain the targets of antidumping protection provided in the WTO framework, they have already acquired the capacity to use such measures and intensified their strategic employment and successfully lodged cases before the Dispute Settlement Body of the WTO. The article attempts to examine and compare critically the Brazil's and China's use of antidumping and elucidate that emerging countries must find a way to harmonize mutually beneficial trading relationships with many other countries, if they intend to improve their leading positions in reshaping the world trading order in a way compatible with their emerging power and influence today. The Author 2013. Published by Oxford University Press. All rights reserved., Oxford University Press.

Developed Countries' Cap-and-Trade Border Measures: China's Possible Reactions

Certain developed countries are exploring the possibility of imposing border measures to address the issues of “competitive disadvantage” and “carbon leakage” caused by asymmetric climate change policies in different countries. This article examines whether these border measures can satisfy the chapeau requirement1 under Article XX of GATT, which is probably the most significant procedural hurdle under the WTO framework. Furthermore, this article takes stock of China's domestic actions to combat climate change as well as their potential effectiveness, and then analyses the motivations behind those actions.2 After that, this article probes into China's potential advisable reactions towards these possible border measures, including China's domestic institutional building.

Compulsory Licensing Issues and Trends in Asia

*Tilleke & Gibbins International Ltd., Supalai Grand Tower, 26th Floor 1011 Rama 3 Road, Chongnonsi, Yannawa, Thailand Tel.: +66 2653 5874 E-mail: siraprapha.r@tilleke.com Government-use compulsory licensing has almost always stirred up controversies and debates with regard to its appropriateness, actual benefits and detriments. Patent owners and advocates of IP protection remain firm on the position that while a country has the right to override patents by issuing compulsory licenses (CLs) in certain limited circumstances, this should be viewed as a last resort, not a preferred method of tackling public health issues. On the other hand, patient rights groups, NGOs and pro-CL governments argue that implementing CLs is in line with international obligations under the WTO framework, which affords member states the right to challenge patents in order to promote access to medicines and resolve public health problems. Although most of the earlier CLs issued in Asia mainly focused on solving health crises relating to HIV/AIDS or other epidemics, Thailand and India began to implement CLs as a means to increase access to drugs whose market prices are regarded as being too costly, including cancer drugs and cardiovascular drugs. This new trend is a slippery slope, and could easily turn into abuse of the patent system beyond what was intended under the WTO framework. Protection of intellectual property, including patents, was specifically recognized by the WTO in the TRIPS Agreement [1]. As an exception to patent rights, Article 31 of the TRIPS Agreement recognized that a member state may grant CLs where necessary, but it also set out a number of conditions and limitations for such government-use CLs. In particular, to provide an opportunity for fair negotiations, Article 31 subparagraph (b) mandated that before a CL is granted, the proposed user must have made efforts to obtain authorization from the patent owner on reasonable commercial terms, and such efforts must have been unsuccessful after a reasonable period of time. An exception is in the case of ‘a national emergency or other circumstances of extreme urgency’, for which a government need not consult with the patent owner in advance of granting the CL; however, the government should notify the patent owner as soon as reasonably practicable thereafter. Article 31 subparagraph (c) also limited the scope and duration of the CLs to the purposes for which they were authorized, and subparagraph (f) further restricted the CLs to the supply of the domestic market. In short, the TRIPS Agreement provides members with compulsory licensing flexibility, but with strong safeguards against an abuse of such power. Subsequently, with the rise of public health problems and issues regarding access to medicines, especially global concerns over the HIV/AIDS epidemic, at

South Asian Agrifood Trade Networks in India: A Case Study of Onion Exports

South Asia has emerged as one of the fastest-growing regions of the world while global agricultural trade has expanded since its inclusion into the WTO framework, especially for developing agrarian economies such as India, which are expanding as suppliers of agricultural products to various markets. Within South Asia, agriculture still remains crucial to economic growth and poverty reduction. Though the relative contribution of agriculture has come down in all of the South Asian countries, but the value-added farm products exports have grown in importance and have direct implications for farm incomes and rural livelihoods. It is in this context that this article examines the nature and dynamics of Regional Production Networks (RPNs) or regional value chains in South Asia in the food sector with case studies of fresh onions and their product exports as they originate from India. It tries to understand the organization of value chains and the networks for smaller companies and farmers supplying to lead buyers or chain drivers, explores product, process, and labour standards and suggests mechanisms for leveraging RPNs for better trade, growth and poverty reduction.

El multilateralismo AD HOC en las relaciones China-América Latina y el Caribe y las coaliciones sur-sur en las negociaciones de la OMC sobre el comercio agrícola

En este artículo se busca demostrar cómo China ha diversificado su estrategia de relacionamiento con América Latina y el Caribe, donde la dimensión bilateral es complementada por la multilateral, proponiéndose que China ha desplegado una estrategia multilateral de carácter no convencional, lo que implica la extensión de la acción diplomática china desde los escenarios multilaterales altamente institucionalizados hacia los menos institucionalizados, tales como las coaliciones sur-sur de países en desarrollo -particularmente el G-20 y el G-33- en el marco de las negociaciones de la OMC sobre el comercio agrícola internacional.Ello responde a la composición de ambas coaliciones, sus intereses y objetivos, y su liderazgo colectivo gracias a la capacidad de consenso dentro de estas y junto a otras agrupaciones.

Inhumane Arbeitsbedingungen auf dem globalen Markt — Wer kann, wer soll handeln?

Brande in Textilfabriken und Selbstmorde bei Computer-Zulieferern machten jungst deutlich: In asiatischen Werken, die fur den europaischen und amerikanischen Markt produzieren, herrschen teilweise skandalose Arbeitsbedingungen. Als Masnahmen gegen diese Missstande werden Sozialkapitel in Handelsabkommen, Gutesiegel und die Selbstverpflichtung von Unternehmen diskutiert. Einige der Zeitgesprachs-Autoren geben zu bedenken, dass die Arbeitsbedingungen historisch zu relativieren und im Kontext mit dem dortigen Produktivitatsniveau zu beurteilen seien.

China at the crossroads

PurposeChina has become a most dominant player in the global economy with immense political repercussions, for instance in Africa. The extremely rapid Chinese economic transformation has been accomplished through strong globalisation with, for example, entrance into the WTO framework. Now it faces the challenges of accepting the other side of the globalisation coin, namely institutional transparency, ecological sustainability and foreign policy integration into the international community. The purpose of this paper is to explore this.Design/methodology/approachMacro approach using country indicators on economic growth, institutional transparency, rule of law and ecology pressure. It relates these index scores to the overall social transformation of the country.FindingsChina has performed well on economic globalisation but lags on political modernisation, i.e. institutional transparency as well as on ecological sustainability for a post‐modern society.Research limitations/implicationsChina must address the challenges of the post‐modern society with its call for transparency, sustainability and peaceful accommodation with neighbours.Social implicationsModernisation has two sides, not only economic growth. As China is set to become the world leader economically, it will embark upon the post‐modern society, with its demands for peace, rule of law and environmental protection.Originality/valueThe paper puts economic globalisation against political modernisation and ecological globalisation in a clear manner for China.

World’s Agricultural Production and Trade: Food Security at Stake?

The extraordinary events of the last couple of years, like the surge and the topsy-turvy movement in oil, raw material and food prices, or the development of a so far unprecedented global financial and economic crisis, have been heavily testing the endurance of those earning their living from agriculture and related activities. All these troubles have not been beneficial to the ongoing trade liberalization process within the framework of WTO. Answers to the challenges at national level and the continuing proliferation of inter- and intraregional free trade agreements make the early global liberalization even less probable. The situation is further complicated by those really divergent changes of agricultural policy that are about to develop on the opposite sides of the Atlantic. In this paper, we describe the recent development of world’s agricultural production and trade; offer an insight into the evaluation problems of worldwide food insecurity; and briefly compare the upcoming agricultural policy reforms in Europe and the US.

Mainland China and Taiwan Face to Face in the WTO: A 10-Year Rollercoaster Ride

AbstractThis article traces the interactions between Taiwan and China in the World Trade Organization with regard to Chinese concerns about Taiwan’s sovereignty and the application of the “one China” principle. The analysis proceeds in three stages: first, both parties’ simultaneous accession negotiations; second, continued sovereignty-related disputes after the accession; and third, Taiwan’s accession to the WTO’s Government Procurement Agreement. The article uses cost/benefit calculations to explain the Chinese and Taiwanese attitudes in their encounters within the WTO framework. The decision-making bodies in the WTO had decided that Taiwan could only accede after China, while agreeing that then Taiwan should become a separate member, independent from China. After this decision, China could have only stopped Taiwan’s accession by letting go of the opportunity to become itself a WTO member. China needed to balance its own wish to join the trade body with its desire to block a Taiwanese entry on sovereignty grounds, therefore from China’s perspective, opposition to Taiwan’s WTO participation became a cost/benefit calculation. Once both Taiwan and China had entered the organisation, China’s means to put pressure on the organisation improved, it could at a much lesser cost influence decisions on Taiwan’s status within the organisation.

Trade Governance in the Digital Age (Preface)

The development of new digital technologies has resulted in significant transformations in daily life, from the arrival of online shopping to more fundamental changes in the ways we work and communicate. Many of these changes raise questions that transcend market access and liberalisation and demand cooperation and coherent regulatory design. International trade regulation has hitherto not reacted in a forward-looking manner to the digital revolution; particularly at the multilateral level, legal engineering has yielded few tangible results. This book examines whether WTO laws possess the necessary flexibility and resilience to accommodate the changes brought about by burgeoning digital trade. By revealing both the potential and the limitations of the WTO framework, it provides a broad picture of the interaction between digital technologies and trade regulation, links the often disconnected discourses of international trade law, intellectual property and cyberlaw, and explores discrete problems in different domains of global trade regulation.

Export Cartels: Is it Legal to Target your Neighbour? Analysis in Light of Recent Case Law

Despite the growing sophistication of antitrust regimes around the world, export cartels benefit from special treatment: they are almost universally tolerated, if not encouraged in the countries of origin. Economists do not offer an unambiguous policy recommendation on how to deal with them in part due to the lack of empirical data. This article discusses arguments for and against export cartels and it identifies the existing gaps in the present regulatory framework. The theoretical part is followed by an analysis of the recent case law: a US cartel challenged with different outcomes in India and South Africa, as well as Chinese export cartels pursued in the USA. The Chinese cases are particularly topical as the conduct at stake, apart from being subject to private antitrust actions before US courts, was also challenged within the WTO dispute settlement framework, pointing out to the existing interface between trade and competition. While the recent developments prove that unaddressed issues tend not to vanish, the new South--North dimension has the potential of placing export cartels again on the international agenda. Pragmatic thinking suggests looking for the solution within the WTO framework. Oxford University Press 2012, all rights reserved, Oxford University Press.

A Strategic Framework of Liberalising Trade in Services for Pakistan.

For a long time, services were considered non-tradable in the literature of international economics. However, the sector has emerged with profound importance on the basis of strong underpinnings. Technological advancement, financial constraints and limited options, and regulatory changes have greatly expanded the range and scope of trade in services especially in the context of increasing share of knowledge intensive products at the world market. Services now account for a substantial and rising share of output and employment in the economy of Pakistan and its trading partners. However, it is argued that the growing share of services in the economy of Pakistan and its trading partners has not translated into a significant increased share in their over-all trade. Pakistan is heading towards liberalisation of trade in services through unilateral, bilateral, multi-lateral agreements under the broad framework of WTO. Recently, in the wake of trade liberalisation in EBOPS services among Pakistan‘s trading partners; Pakistan has received request lists from its trading partners in the context of national treatment and market access under four modes of cross-border supply of WTO framework. In this regard, the opportunities as well as risks associated with trade liberalisation depend primarily on the relative competitiveness among the trading partners. It is, therefore, essential for the policy makers to design such a trade policy which not only helps in promoting domestic services industries but also open up new opportunities of employment generation and economic growth and development with a guarantee of peace and stability within and across its neighbouring countries. In this connection, this research paper develops a strategic framework of liberalising trade in services in 12 categories of services with 26 partner countries of Pakistan using various economics tools (RCAI, TII, TCI, TBI) and econometric models and techniques (OLS, PLS, 2SLS) by using panel data on annual and quarterly frequencies. JEL classifications: C52, C63, C87, F1, F13, F14, L8, F15, O24 Keywords: Trade in Services, Growth and Development, Trade Potential through Two Stage Least Square with Cross-section Fixed Effect Model by Using Panel Data, Trade Intensity Indices (TII), Trade Complementarity Indices (TCI), Trade Biased Indices (TBI), Revealed Comparative Advantage Indices (RCAI), Determinants of RCAI Using Pooled Least Square Method (PLS), Price and Income Elasticities Using Ordinary Least Square Method (OLS),

The Concept of Development in the WTO Legal System

Even though the WTO agreement and texts contains extensive provisions addressing the rights and obligations of developing countries and LDCs, there is no definition of the terms 'development' and 'developing country'. Instead, importantly, member states designate themselves as 'developed' or 'developing'. Thus, it is possible to find countries with wide disparities in per capita incomes benefiting from the same provisions — under the designation “developing”. What this work attempts to do is configure the idea of “development needs” within the legal framework of the WTO.