World Trade Organization Agreements Research Articles

World Trade Organization Agreement on Fisheries Subsidies

World Trade Organization Agreement on Fisheries Subsidies

Governance and regulation of local working requirement and importation: Pharmaceutical industry study

This paper aims to analyze the governance and regulation of local working requirement (LWR) and importation of pharmaceutical products in Indonesia. Based on the theoretical perspectives of Cottier and Panizzon (2004) and Champ and Attaran (2002), this study aims to analyze the important role of patents through LWR and importation, both directly or indirectly to facilitate the transfer of technology and to stimulate technology transfer with the availability of technology information through patent documents. The research was conducted by using a qualitative descriptive-analytical method. A doctrinal approach was used in this study in the context of reviewing the laws and regulations in the field of patents, the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter TRIPS Agreement), health law, and its derivative regulations. The theory used in this study is about the politics of patent law which focuses on the national interest to pursue local production of patented inventions. The results showed that LWR, pharmaceutical importations provisions, and intellectual property rights law policies as a whole in Indonesia need to be harmonized and integrated with policies on technology transfer, industrial development, trade, and investment. The results underscore the main way in which LWR can contribute directly to the transfer of technology in developing countries.

Dwell Time Analysis of Clearing Import Cargo in India

In a competitive global world, a short delivery time is of utmost value. Looking from the importing country’s administrative perspective, the time taken from the arrival of cargo into ports/ airports to being cleared by customs authorities is of key importance in the overall delivery time. This article analyses the dwell time (DT) performance of cargo imported into India and consists of two groups: sea cargo and air cargo. Evaluation of the current performance in comparison with goals set in the National Trade Facilitation Action Plan (NTFAP) of India 2017–2020, under World Trade Organization (WTO) agreement on Trade Facilitation Agreement (TFA) is conducted. To give out recommendations for reduction in DT, the channel of clearance and location of the custom site is studied independently and in combination. Dwell time, Import clearance process, Channel of clearance

India-Afghanistan Trade and International Law

The horrific takeover of Afghanistan by the Taliban has been accompanied by the shutting down of the trade route with India. This action has put into serious jeopardy the bilateral trade between the two countries totaling USD 1.5 billion nurtured in the last two decades. The paper argues that despite Taliban’s unconstitutional takeover of the Afghan government and the absence of de jure recognition being conferred on it, international law obligations continue to bind it. In this regard, the paper argues that Taliban’s shutting down of the trade route is tantamount to imposing a trade embargo with India, which breaches several provisions of the three trade agreements that govern India-Afghanistan trade: India-Afghanistan Preferential Trade Agreement (PTA), South Asian Free Trade Area (SAFTA) agreement and the World Trade Organization (WTO) agreement. However, due to the weak dispute settlement mechanism in India-Afghanistan PTA and SAFTA, it will be difficult for India to hold the Taliban regime accountable. An important lesson for India is to reboot the dispute settlement mechanism in SAFTA moving away from a diplomacy-based system to a de-politicized and rule-based dispute settlement order. India, Afghanistan, Trade, Taliban, PTA, SAFTA, WTO, GATT

The WTO’s Collapsing Judicial and Legislative Wings: Is ‘Consensus’ the Real Elephant in the Room?

The World Trade Organization (WTO) has three main functions: (i) it provides a negotiation forum where Members can negotiate new agreements and understandings, (ii) it provides a judicial forum where trade disputes between countries can be settled, and (iii) it acts as an executive forum for the administration and application of the WTO agreements, including capacity-building and training in this respect. Currently, it is only performing its executive function, as the other two functions remain stalled. The authors in this article analyse two challenges that have contributed to paralysing the WTO’s legislative and judicial functions. With this assessment, the authors suggest that the ‘real elephant in the room’, i.e., the root-cause behind these challenges, is the avoidable ‘consensus-based decision-making’. World Trade Organization, National Security Exception, Appellate Body, Consensus, Decision-Making

Re-theorising international agricultural trade regulation to realise the human right to food in developing countries

The call to re-theorise international agricultural trade regulation to advance the human right to food has gained traction in various international platforms, including the United Nations (UN) and the World Trade Organization (WTO), among others. The emerging consensus is that the WTO-driven liberal rules on agricultural trade regulation have been unable to deliver effective outcomes for the realisation of the human right to food. This article explores options for re-theorising the regulation of international trade in agriculture to strengthen synergetic linkages with the obligations imposed on States to respect, promote, fulfil, and realise the human right to food enshrined under the International Covenant on Economic, Social and Cultural Rights and a number of other international human rights instruments. It contends that existing legal theories provide the basis for a plausible theoretical justification for incorporating explicit human right to food obligations into the WTO framework for agricultural trade regulation through the reform of key provisions of the WTO Agreement on Agriculture (AoA) pertaining to market access, domestic support to agriculture, and export subsidies. Theories of sustainable development and distributive justice theories spawn a comprehensive egalitarian imperative for re-conceptualising the rules of the AoA in pursuit of realising the human right to food, especially in developing countries.

TRIPS to Where? A Narrative Review of the Empirical Literature on Intellectual Property Licensing Models to Promote Global Diffusion of Essential Medicines.

Governed through the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) since 1995, the current medical R&D system requires significant trade-offs between innovation and high monopoly prices for patented drugs that restrict patient access to medicines. Since its implementation, few amendments have been made to the original TRIPS agreement to allow low- and middle-income countries (LMICs) to facilitate access by generic manufacturers through flexible provisions, such as compulsory licensing and parallel import. Although a useful policy tool in theory, the routine use of TRIPS flexibilities in LMICs in the procurement of new essential medicines (EMs) is regarded as a ‘last resort’ due to strong political response in high-income countries (HICs) and new trade agreements’ restrictions. In this context, access-oriented biomedical Public-Private Partnerships (PPPs) have emerged. More recently, leading multilateral health organizations have recommended different types of intellectual property (IP) interventions, voluntary biomedical patent pools, as strategies to reduce prices and increase the diffusion of novel EMs in LMICs. Nevertheless, the recent Ebola and COVID-19 outbreaks highlight growing concerns regarding the use of TRIPS flexibilities and the limited success of voluntary mechanisms in promoting access to medicines in the Global South amidst health crises. This review aims at describing the state-of-the-art empirical research on IP-related options and voluntary mechanisms applied by emerging PPPs to guarantee timely and affordable access to EM in LMICs and reflect on both models as access paradigms. Some suggestions are put forward for future research paths on the basis of these analyses and in response to contemporary debates on waiving key IP rights on COVID-19 therapies, diagnostics, and vaccines.

The necessity for Zambia's vitamin A sugar fortification requirement

Zambia faces a serious vitamin A deficiency (VAD) that affects most infants and expectant mothers, leading to night blindness, maternal deaths, and more. One of the efforts to address this is by permitting only the manufacture, sale, or import of household consumption sugar which is fortified with vitamin A - which is seen as a disguised restriction on international trade. Through a desk-top research study, the article examines the question, as to what extent Zambia's fortification requirement complies with the necessity principle in the Technical Barrier to Trade Annex to the Southern African Development Community Protocol on Trade (TBT Annex) and Article 2(2) of the World Trade Organization's Agreement on Technical Barriers to Trade (TBT Agreement). The research finds that the measure is a technical regulation with a legitimate objective to protect the health and lives of a target VAD Zambian population. Further, it is applied to both domestic and like foreign products; therefore, it is neither discriminatory nor directly linked to the lack of competitive opportunities for like foreign products. Even if fortified maize meal could be opted for instead of sugar, it cannot achieve the equivalent contribution in dealing with the VAD problem because of challenges, such as, the uncertainty in regulatory regime, and its irregular consumption pattern. Consequently, the sugar fortification requirement is not more trade restrictive than necessary under the TBT Annex and Article 2(2) of the TBT Agreement.

Three Decades of the Nakajima Doctrine in EU Law: Where Are We Now?

ABSTRACT Under the Nakajima doctrine, the Court of Justice of the European Union (CJEU) can review the legality of a European Union (EU) measure in the light of the World Trade Organization (WTO) agreements if the EU legislature intended to implement a particular obligation assumed in the context of those agreements. This article argues that Nakajima remains a valid exception to the lack of direct effect of WTO law in the EU. Section II highlights the CJEU’s restrictive interpretation of Nakajima. Section III shows that in recent case law the CJEU continues to take a narrow interpretation of Nakajima, although the CJEU has been reluctant to abolish it altogether. This section also analyses the feasibility of establishing the intention to implement WTO law based on external circumstances (Section III.B) and demonstrates Nakajima’s significance beyond EU law (Section III.C). Section IV criticizes the CJEU’s combination of Nakajima and the principle of interpreting EU law in consistency with international law. Section V concludes.

The Law on State Responsibility and the World Trade Organization

Abstract This paper examines the role of general international law in the World Trade Organization (WTO) regime, using the rules on state responsibility as a case study. It identifies and discusses instances in WTO case law where such rules were applied directly or were taken into consideration in interpreting relevant WTO provisions. The analysis demonstrates that direct application of general international law for the determination of indispensable matters not regulated by the WTO Agreements is part of the inherent powers of WTO adjudicative bodies. Moreover, under Article 3(2) Dispute Settlement Understanding and Article 31(3)(c) Vienna Convention on the Law of Treaties, WTO adjudicative bodies have an obligation to take into account general international law in interpreting relevant WTO provisions. The paper delineates the methodology for assessing the interaction between general international law and WTO law and highlights the importance of adhering to this methodology to provide clarity and legal certainty regarding the scope and content of WTO obligations.

Trade Agreements in the Last 20 Years: Retrospect and Prospect for Agriculture

SummaryWe provide an overview of major developments in multi‐ and plurilateral trade agreements over the last twenty years with a focus on the implications for agricultural and food markets. We take stock of what has been accomplished in market integration, remaining obstacles to trade, events that have changed the trade landscape, and emerging issues. Agricultural tariffs have fallen through commitments made in the Uruguay Round Agreement on Agriculture and through the proliferation of regional trade agreements (RTAs). Nevertheless, agricultural trade remains distorted with some extremely high tariffs. RTAs have achieved progress on nontariff measures and other beyond‐the‐border frictions. World Trade Organization (WTO) negotiations on agricultural trade distortions have stalled because of their complexity and divergent political interests among WTO members. In addition, the dispute settlement mechanism no longer functions. The WTO will have to adjust to a world of RTAs and use its tools and procedures to support the multilateral trading system by promoting increased transparency of RTAs and their conformity with existing WTO agreements. The WTO can also use existing tools to head off disputes using specific trade concern mechanisms, such as those implemented through the sanitary and phytosanitary (SPS) and Technical Barriers to Trade (TBT) committees.

Globalization of Agriculture and Atomization of Farming: Small Farms Crisis in Asia

Agriculture in Asia is being pushed into a new policy regime that uncritically promotes free trade and laissez faire policies. The World Trade Organization agreement on agriculture, regional preferential trading arrangements (PTAs) and neoliberal policies pursued by the individual nations are the central features of the new regime. The new regime is built disregarding the existing knowledge on agricultural commodities that they are prone to market failures, which are unlikely to be corrected if left unregulated. In this article, we portray the new regime in terms of two defining processes that are at work, viz. globalization of agriculture and atomization of farming. Globalization happens on account of integration of the agricultural markets at provincial, national and global levels. Atomization of farming occurs due to fragmentation of holdings on the one hand and weakening of ‘collective action’ on the other. In the farming end of the value chains, millions of small farms, who lack any market power whatsoever, compete among themselves. The post-harvesting nodes have fewer and larger firms. As we have argued at length, the large firms inhabiting the postharvest nodes of the commodity chains are capable of extracting profit out of volatilities in the market. The non-farm nodes are characterized by economies of scale and possible accumulation of market power. Such profiteering will be at the expense of the atomized farms as well as the final consumers of the commodities. The policy has become suddenly very active in abetting competition upstream and limiting it downstream. The regime legitimizes entry barriers downstream and intervenes directly to promote entry, augment supply/competition upstream. The policymakers do not want to intervene in the market to save producers from commodity problems; instead favour players profiteering out of such possible instances of market failure.

A constructive critique of the World Trade Organization draft agreement on harmful fisheries subsidies

November 2021 could see members of the World Trade Organization (WTO) reach an agreement to prohibit harmful fisheries subsidies, culminating over 20 years of negotiation and discussion. This commentary highlights strengths and places where the current draft text can be improved to ensure the agreement truly contributes to sustainable and equitable fisheries. Overall, conditionalities and exemptions are better streamlined and defined, time periods to enter into compliance are allowed yet reasonably short, types of subsidies to be particularly avoided are clearly noted, and appropriate emphasis is placed on reducing impacts from distant-water and transboundary fishing fleets. Key places for improvement relate to unspecific language on supporting fisher incomes, the uniform handling of illegal, unreported, and unregulated fisheries (IUU), and transparency in distant water fisheries, issues partly stemming from historical definitions that are useful for some fisheries but may not capture the complexity of others. Capacity-enhancing subsidies should be avoided, and it is important to avoid further negative impacts on marginalized fisher populations. Given the importance of reaching an agreement without further delay, we urge members to proactively and inclusively formalize their fishing definitions and practices to prevent inequitable outcomes for vulnerable fishers during the implementation stage of a new agreement. A WTO agreement to prohibit harmful fisheries subsidies is an opportunity to catalyze the design and funding of improved and cooperative national and international fisheries policy and management strategies, to the benefit of fishers, global seafood production, and indeed all who hold relationships with our oceans.

KEUTAMAAN WORLD TRADE ORGANIZATION ATAS REGIONAL TRADE AGREEMENTS DALAM PERDAGANGAN INTERNASIONAL

The economic and political needs of countries in the world have provided a strong basis for the birth of the World Trade Organization (WTO). This need has also prompted many countries to form preferential agreements such as the Regional Trade Agreement (RTA). A clash between the two international trading systems is inevitable, there is the ambiguity of the relationship and inconsistency of views held, such as in discriminatory and non-discriminatory approaches. Doctrinal research was conducted to find out which agreement should take precedence over the two legal regimes. This paper concludes that international legal provisions favor the WTO Agreement over preferential agreements such as the RTA. Thus, an RTA that does not conform to the WTO legal regime should be considered contradictory.

A strong and stable IP system incentivizes tools to combat COVID-19

The American Chemical Society Committee on Patents and Related Matters (CPRM) provides information and guidance to ACS and the broader chemistry community about patent and other intellectual property (IP) issues. During the pandemic, the world witnessed the power of science and innovation, including the creation of mRNA vaccines. The rapid deployment of these technologies was made possible by years of innovations incentivized by IP systems worldwide. This system has always played a vital role in incentivizing the discovery, development, and commercialization of novel scientific technologies that benefit not only those rewarded with IP rights but also the public. However, some have argued that our IP system is a hindrance and has contributed to the worldwide vaccine shortage, particularly in developing countries. At an October 2020 World Trade Organization (WTO) meeting, India and South Africa proposed waiving certain IP protections provided by the WTO Agreement on Trade-Related Aspects of Intellectual Property

Differential treatment for developing countries in the WTO: the unmaking of the North–South distinction in a multipolar world

This article examines the implications of the rise of new powers in the Global South for a central principle of global order: the distinction between the ‘North’ and the ‘South’, or ‘developed’ and ‘developing countries’, that emerged in the second half of the twentieth century. In doing so, we assess whether, and if so, how, the increasing tension between the binary ‘North–South’ distinction and growing heterogeneity within the Global South – as evidenced by the rise of emerging economies – has been reflected in the rules of multilateral trade policymaking. In the case of the World Trade Organization (WTO), the ‘North–South’ categorisation forms the basis of the legal principle of Special and Differential Treatment (SDT) that grants special rights to developing countries. To trace the evolution of SDT, we analyse legal developments and processes of contestation based on our conceptualisation of possible options for adaptation: graduation, individualisation and fragmentation. Drawing on a dataset of WTO decisions and agreements from 1995 to 2019, we find that the group of developing countries increasingly competes with other groups of disadvantaged countries for equity-based differential treatment. The resulting fragmentation contributes to the unmaking of the North–South distinction as a central ordering principle in global trade politics.

THE IMPLICATIONS OF THE WTO TOBACCO PLAIN PACKAGING DISPUTES FOR PUBLIC HEALTH MEASURES

AbstractAustralia became the first country to introduce standardised or plain packaging laws for tobacco products in 2011. However, they immediately came under direct and indirect challenge from the tobacco industry in various domestic and international fora, including at the World Trade Organization (WTO). The WTO-consistency of Australia's measures was not settled until June 2020, when the Appellate Body upheld two WTO panels’ earlier findings that Australia had acted consistently with its obligations under certain WTO agreements. This article critically analyses the Appellate Body's key findings and their implications for implementing other public health measures. It is shown that these implications are multifaceted, have political, practical and legal dimensions and are likely to reach beyond the WTO dispute resolution system's bounds into other international trade and investment law contexts.

Special and Differential Treatment Under the World Trade Organization: A Legal Typology

ABSTRACT The World Trade Organization (WTO) Secretariat has developed a typology to categorize various Special and Differential Treatment (SDT) provisions in WTO agreements. This typology is based on the aims and intended effects of such provisions. However, it fails to highlight their legal effects. A legal typology is particularly important because the developed Members note that the developing Members have taken advantage of the system through this treatment and intend to abolish SDT for certain advanced developing Members, whereas developing Members have called SDT a non-negotiable and treaty-embedded ‘right’. Moreover, developing Members have called for an effective operation of SDT provisions. These claims give rise to two questions: (i) do SDT provisions provide legal rights to developing Members? (ii) if so, what provisions confer differential treatment rights? In this article we devise a legal typology for SDT by distinguishing the provisions that confer rights and duties from provisions that constitute merely political commitments. We also consider the types, and the scope, of rights and duties that result in a special or differential treatment. Our results, inter alia, highlight that only 21% of SDT provisions oblige developed Members to provide differential treatment to developing Members. The rest are mere best-effort endeavors and political commitments. We provide our observations for this design feature and explain the underlying rationale of developing Members’ position on SDT. Lastly, we provide a blueprint to resolve the North–South deadlock.

What You Don't Know About the Codex Can Hurt You: How Trade Policy Trumps Global Health Governance in Infant and Young Child Nutrition.

Background: International food standards set by the Codex Alimentarius Commission (CAC), have become more prominent in international trade politics, since being referenced by various World Trade Organization (WTO) agreements. We examine how this impacts implementation of the World Health Organization (WHO) International Code of Marketing of Breast-milk Substitutes. Methods: Using trade in commercial milk formulas (CMFs) as a case study, we collected detailed data on interventions across various WTO bodies between 1995 and 2019. We used language from these interventions to guide data collection on member state and observer positions during the CAC review of the Codex Standard for Follow-up Formula (CSFUF), and during CAC discussions on the relevance of WHO policies and guidelines. Results: Exporting member states made 245 interventions regarding CMFs at the WTO, many citing deviations from standards set by the CAC. These did not occur in formal disputes, but in WTO Committee and Accession processes, toward many countries. In Thailand, complaints are linked to weakened regulation. Exporters also sought to narrow the CSFUF at the CAC in a way that is at odds with recommendations in the International Code. Tensions are growing more broadly within the CAC regarding relevance of WHO recommendations. Countries coordinated during WTO committee processes to advocate for reapportioning core WHO funding to the CAC and in order to further influence standard-setting. Conclusion: The commercial interests of the baby food industry are magnifying inconsistencies between health guidelines set by the WHO, standard-setting at the CAC, and functions of the WTO. This poses serious concerns for countries’ abilities to regulate in the interests of public health, in this case to protect breastfeeding and its benefits for the health of infants, children and mothers.

Commitment behaviour in the World Trade Organization's Trade Facilitation Agreement

AbstractWe use a new database of commitments made during the process of ratifying the Trade Facilitation Agreement (TFA) to study variation in countries’ commitment behaviour. The TFA is a novel World Trade Organization agreement because it allows developing countries to select commitments from a menu of best practices in trade facilitation, rather than to consent, or not, to a comprehensive package of negotiated commitments. The operation of this á la carte approach to concluding trade agreements is worthy of study in its own right, but the commitment data also offer a high‐level description of progress in an international effort to improve border management procedures around the globe. Our study uses data on TFA commitments to describe progress across subcomponents of the agreement. A regression model shows that the number of Type A trade facilitation commitments that a country made in the TFA ratification process depends on its level of development, population size, ability to control corruption and foreign aid received to support trade facilitation. We use multidimensional scaling techniques to study differences in the content of national commitment bundles. This approach demonstrates that variation in the content of countries’ commitments is closely tied to the number of commitments made.