World Trade Organization Provisions Research Articles

Legal Challenges and Opportunities in World Trade Organization Agreements: A Comparative Analysis of Member States

The World Trade Organization (WTO) agreements have a broad and complex impact on its member countries, especially regarding trade policy and global economic justice. Legal challenges in implementing these agreements, including harmonization between national and international law, as well as domestic political and economic dynamics, add to the complexity of their implementation. In addition, the WTO agreements also offer significant opportunities for member countries, such as wider market access and increased foreign investment. This study aims to analyze the long-term impact of the WTO agreements on trade policy, economic justice, and sustainable development in its member countries. This study uses a qualitative approach, with data obtained from various relevant sources such as research results and previous studies, which are then processed and analyzed in depth. The results show that the WTO agreements significantly shape the direction of member countries' future trade policies, with a greater impact felt by developing countries. Global economic injustice has emerged as one of the consequences of the implementation of these agreements, where developed countries are better able to utilize WTO provisions. On the other hand, the environmental and social impacts of implementing the WTO agreements are concerns that require better integration into trade policy. Projections of future challenges suggest that the WTO must continue to adapt to global changes to remain relevant and effective. Overall, this study highlights the need for a balance between trade liberalization and the protection of social and environmental values ​​within the WTO framework.

The Importance of Developing Countries Joining GATT 94 / WTO

The establishment of the World Trade Organization (WTO) framework signifies a pivotal milestone in aligning member countries' trading regulations with the WTO's provisions. Developing countries' participation in the WTO fosters equitable competition and contributes to global development. WTO agreements offer flexibility for developing nations to adhere to WTO regulations, providing specialized assistance to the least developed countries (LDCs) and trade concessions in line with GATT regulations. Moreover, the WTO ensures predictability in the business environment, encouraging investment, job creation, and fair competition. Its multilateral trading system fosters peace by facilitating constructive conflict resolution between nations, regulating trade through appropriate mechanisms, and reducing tariffs and non-tariff barriers to enhance affordability.

The Obligation Of Local Content Requirements (Lcr) Of Power Plant From The Perspective Of The World Trade Organization (WTO)

As a developing country, Indonesia requires foreign investments, particularly to improve the welfare of its people. Trade provisions are regulated by the World Trade Organization (WTO) mainly to reduce all potential barriers that emerge in the global investment realm. Along with the entry of various foreign products and investments, developing countries often apply local content requirements, which in Indonesian terms are known as the Tingkat Komponen Dalam Negeri (TKDN). Particularly in the field of electricity infrastructure development, the government of Indonesia regulates the minimum level of TKDN in the construction of power plants. The TKDN provisions normatively conflict with WTO principles, namely national treatment, because they are included in the illustrative list regulated in the Agreement on Trade-Related Investment Measures (TRIMS). In this article, the author uses a normative research method in which research is conducted by examining Indonesian TKDN regulations related to the construction of power plants against the WTO agreement for a more in-depth analysis. This article aims to examine whether the TKDN provisions made by the Indonesian government are parallel with the WTO policies. It can be concluded that Indonesia's TKDN policy could violate WTO provisions. Still, if the TKDN policy is for the welfare of the community and managed directly by the government, it could be excluded since it is conducted not within purely commercial profits purposes.

On the political economy of trade agreements: A de jure and de facto analysis of institutions

This paper examines the effect of the quality of institutions on the membership in trade agreements from de jure and de facto perspectives, with a special focus on the Middle East North Africa (MENA) countries. First, for the de jure aspect, we analyze how the quality of domestic institutions in a country affects its likelihood of joining a trade agreement. Moreover, for the de facto aspect, this paper examines how the difference in quality of institutions among trading partners and enforceability degree affects the volume of trade among them. Our main findings show that the larger the difference in the quality of institutions, among MENA countries and their trade partners, the less likely they sign a trade agreement (deep compared to a shallower one). Moreover, the higher the enforcement degree of the agreement is, the greater the positive effect on trade flows. This result holds for the enforcement of the aspects related to the World Trade Organization provisions (WTOP) and those not related to it (WTOX). Yet, this positive effect of enforceability differs according to the content of legally enforceable provisions. Finally, our results hold even when we control for the selection bias related to joining a trade agreement, the endogeneity of enforcement and the way we measure both institutions and enforcement.

Hambatan Indonesia Dalam Implementasi Agreement On Agriculture (AoA) WTO Pada Masa Pemerintahan Jokowi Tahun 2014-2019

Framework of agricultural trade liberalization in the context of World Trade Organization (WTO) General Agreement set out in the field of Agriculture or the Agreement on Agriculture (AOA). AOA is one of the international treaties that are generated through a series of WTO negotiations in the Uruguay Round of General Agreement on Tariffs and Trade (GATT). Pact is applied simultaneously with the establishment of the WTO on January 1, 1995 which contained 13 parts and 21Articles which is equipped with 5 Annex and an appendix to the Annex 5. The AoA has three main pillars, namely the expansion of market access, domestic support and export subsidies. Through Law No. 7 of 1994, Indonesia has ratified the WTO provisions which obliges WTO member states to adapt the rules contained in Annex WTO. One of them is the rules of the food policy Indonesia through Law No. 7 of 1996 concerning Food and Government Regulation No. 68 of 2002 on Food Security.

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.

Regulating Foreign Labor in Emerging Economies: Between National Objectives and International Commitments

The dialectics of the regulation of foreign workers, is a problematic indication as a legal problem in Indonesian legislation. This article aims to describe the urgency of critical studies concerning the regulation of foreign workers by exploring existing legal problems with national commitments to ratify international agreements regarding free trade, with a case study in Indonesia. By using normative and juridical approach with a variety of approaches both the law approach, conceptual approach, case approach and comparative approach, the study found that the regulation there is an inconsistency clause regarding special competencies that must be owned by foreign workers, including the selection and use of terminology in Act No. 13 of 2003 concerning Manpower. Thus, this study offers a constitutional solution due to the regulation of the subordinate foreign workers on international trade commitments which in turn negate the constitutional goals of creating the welfare of domestic workers. The normative consequences that immediately bind Indonesia after integrating itself in the World Trade Organization (WTO) membership are services trade agreements that are contained in the regulations of the General Agreement on Trade in Services (GATS). Based on the GATT/WTO rules, national legislation or labor regulations that are too protective are considered to violate WTO provisions because the WTO substantially requires the creation of policies without discrimination in all matters including equalizing the position of foreign workers and domestic workers. The final finding of this study offers to draft the concept of future regulation regarding the regulation of foreign workers who are loaded with elements of the objectives of constitutional-based law.
 
 Received: 25 September 2020 / Accepted: 9 April 2021 / Published: 10 May 2021

Shades of Green: Mapping the Parameters of the GATT Article III:8(a) Government Procurement Derogation in the Renewable Energy Transition

Abstract The increasingly pervasive use of trade-related supportive measures in the renewable energy sector has created tensions with World Trade Organization (WTO) obligations. This tension has led to a number of disputes, and in so doing became a testing ground for the compatibility between the trade regime and the climate regime. This article adds to the existing literature by focusing on one of the less discussed, but extremely important, WTO provisions relevant in assessing the legality of renewable energy measures: GATT Article III:8(a). Dormant for more than six decades, Article III:8(a) became a focal point of both the Canada – Renewable Energy and India – Solar Cells disputes. The Appellate Body in both disputes interpreted the so-called government ‘procurement derogation’ narrowly and in so doing limited the scope of the provision. This article argues that while the ultimate decision reached by the Appellate Body was correct, its methodological approach was flawed and could render the provision inapplicable even in scenarios where the measures are unquestionably government procurement. Instead, this article argues that the methodological approach used by the Panel in Canada – Renewable Energy is preferable and more in line with the textual meaning of Article III:8(a).

Shades of Green: Mapping the Parameters of the GATT Article III:8(a) Government Procurement Derogation in the Renewable Energy Transition

The increasingly pervasive use of trade-related supportive measures in the renewable energy sector has created tensions with the World Trade Organization (WTO) obligations. This tension has led to a number of disputes, and in so doing became a testing ground for the compatibility between trade regime and climate regime. This article aims to add to the literature by focusing on one of the less discussed, but extremely important, WTO provisions relevant in assessing the legality of renewable energy measures – the GATT Article III:8(a). Dormant for more than six decades, Article III:8(a) became a focal point of both the Canada – Renewable Energy and India – Solar Cells disputes. The Appellate Body in both disputes interpreted the so-called government procurement derogation narrowly and in so doing limited the scope of the provision. This article argues that while the ultimate decision reached by the Appellate body was correct, its methodological approach was flawed and could render the provision inapplicable in even paradigm government procurement scenarios. While the methodological approach used by the Panel in Canada – Renewable Energy would be more preferable and closer to the context.

The Security Exception In WTO Law: Entering a New Era

For seventy years, the security exception in the multilateral trade regime has mostly lain dormant. The exception first appeared in the General Agreement on Tariffs and Trade 1947 (GATT 1947), before being incorporated in the General Agreement on Tariffs and Trade 1994 (GATT 1994) upon the creation of the World Trade Organization (WTO). However, security exceptions also exist in several other WTO provisions, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS). Until recently, perhaps through a combination of WTO member restraint and fortuitous circumstances, WTO panels have not had to make a definitive ruling on the meaning and scope of these exceptions. Yet, suddenly, the security exception lies at the center of multiple explosive disputes, posing a potential threat to the WTO's very existence.

The WTO and FCTC Dispute Settlement Systems: Friends or Foes?

The paper examines the relationship between the World Trade Organization (WTO) and Framework Convention on Tobacco Control (FCTC) dispute settlement mechanisms. It concludes that since two regimes relate to distinctive legal obligations, one cannot describe the relationship between their dispute settlement mechanisms in terms of conflict of jurisdiction Even if one assumes that such conflict exists a mere existence of an alternative dispute settlement system (i.e. the FCTC) does not preclude a WTO panel from examining a case with respect to possible violation WTO law. The paper also notes that while the FCTC Parties may introduce in the future a new clause in the Convention that will prioritize, over other available alternative mechanisms, its dispute settlement system, this will not affect the jurisdiction of WTO panels (or make a particular case inadmissible). The Appellate Body in its recent report (Peru – Additional Duty on Imports of Certain Agricultural Products), while agreeing that WTO Members can waive their right in the extraneous agreement to have a recourse to the WTO dispute settlement system, also set very strict standards. In particular, such a decision needs to be clearly formulated and can be made only with respect to the settlement of a specific dispute rather than as a general clause. In addition, this cannot lead to the violation of applicable WTO provisions, meaning that a WTO panel will need to examine the contested measure as to its substance anyway. This obviously limits the relevance, under WTO law, of any exclusion clause that may be introduced by the FCTC Parties in the future.

The World Trade Organization Trade Facilitation Agreement: Legal Consequences and Impact on the Union Customs Code

Intensive rounds of negotiations during the 9th Ministerial Conference of the World Trade Organization (WTO) in 2013 led to the Bali Agreements on Trade Facilitation and Least Developed Countries. This article focusses on the legal impact of the WTO Trade Facilitation Agreement (TFA) and compares the most important obligations in the agreement to the European Union’s existing customs legal framework to deduct whether it is in line with the new WTO provisions.

The Status and Effect of WTO Law Before EU Courts

The legal status and effect of World Trade Organization (WTO) law before European Community (EC)/European Union (EU) Courts has been a contentious issue right from the very beginning. Although there have been a number of cases in which the Court of Justice of the European Union (CJEU) has addressed the issue, the rulings have left practitioners guessing as to the applicability and effect of WTO provisions in specific cases. This problem most recently came to a head when the General Court (GC) annulled a regulation imposing definitive anti-dumping duties on certain aluminium foil products from Rusal Armenal, an Armenian company. The GC found that the regulation was inconsistent with the applicable WTO law (in particular the Anti-Dumping Agreement [ADA]) and therefore invalid. On appeal the CJEU set aside the GC’s judgment on the grounds that WTO law can be relied on before the EU Courts only where the EU intends to implement a particular obligation and/or where the EU act at issue refers explicitly to specific provisions of a WTO agreement. When even the GC has difficulty in correctly applying the rules concerning the applicability and effect of WTO law, it’s time to step back and take stock. In this article we analyse the judicature concerning the principles governing the application and treatment of WTO law by Union Courts and develop an analytical framework to explain when and how WTO law can have an effect before these Courts.

Enhancing Trade Governance through Bench Marking Transparency Standards in Asia-Pacific Regional Trade Agreements

Transparency, as a fundamental principle of international trade, could reduce the cost caused by information asymmetries and promote market predictability as well as non-discriminatory treatments. This paper examines transparency provisions in both World Trade Organization (WTO) rules at the multilateral level and Asia-Pacific regional trade agreements (RTAs) at the regional as well as bilateral level. Comparing with WTO provisions, the evolving practice in Asia-Pacific RTAs successfully reinforces and deepens current multilateral transparency obligations. Besides, the importance of transparency of the preferential trade treatments is also investigated in the WTO Transparency Mechanism for Preferential Trade Arrangements. The authors argued that the homogenous content of the examined Asia-Pacific RTAs transparency development provides a governance initiative that could well offer lessons for the WTO.

National Law as an Unpredictable Generator of International Law: The Case of Norm Export at the World Trade Organization

One of the most identifiable instances of national law generating international law is through the use of domestic legislation as the model for a treaty provision. This paper seeks to identify some consequences of using domestic legislation in this way by examining the World Trade Organization (WTO) where numerous obligations are modelled on national law. It argues that, far from straightforward, such a process is a particularly unpredictable form of law-making, the results of which are intelligible only as part of a complex process of "norm export". This paper proceeds in three parts: first, it outlines the motivation for norm export, and identifies one method, embedding domestic law in an international legal system; second, it identifies an example from international trade remedies law modelled on US provisions, and the subsequent unexpected interpretation by the Appellate Body; third and finally, it analyses the seeming failure of the US to establish uniform provisions consistent with its own law in this area, reframing critiques of the Appellate Body's treatment of these US-originated WTO provisions. It does this by acknowledging the multiple exercises of norm export by actors, not only in these specific agreements but also in others, most notably in this case, the constituent document of the WTO's dispute settlement system, the Dispute Settlement Understanding, stressing the complexities involved in norm export and the inherent unpredictability of such an exercise.

Energy Trade and the WTO: Implications for Renewable Energy and the OPEC Cartel

Energy has become increasingly important in international trade relations. However, the World Trade Organization (WTO) does not deal specifically with this sector, and this creates several problems when it comes to regulating trade in energy goods and services. The situation is further complicated, on the one hand, by the need to foster the diffusion of renewable energy to address the current environmental concerns and, on the other, by the total and overwhelming control exercised by the Organization of Petroleum Exporting Countries (OPEC) over the oil market. It is true that, recently, the WTO has shown an increasingly open approach towards environmental issues. However, free trade is still the backbone of the Organization and trade liberalization its main goal. This explains why the WTO Panel and Appellate Body are still reluctant to justify measures adopted to support the renewable energy sector that may conflict with international trade law. Different might be the case with fossil fuels, the main competitor of renewable energy. OPEC exploits several strategies to control oil prices, which, at least in theory, clash with international trade rules. However, whatever the reason, such practices have never been challenged in front of the WTO. The way WTO provisions are interpreted and applied by the Panel and the Appellate Body when environmental concerns are involved can be used as a starting point to forecast a hypothetical judgment in case OPEC's practices were eventually challenged.

NORM CONFLICT BETWEEN WTO COVERED AGREEMENTS—REAL, APPARENT OR AVOIDED?

AbstractThis article explores the issue of norm conflict in the context of specific multilateral agreements that are administered and enforced by the World Trade Organization (WTO), namely, the General Agreement on Tariffs and Trade 1994 (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Any discussion of norm conflict between treaty provisions must necessarily draw a critical distinction between an apparent conflict, on the one hand, and a real conflict, on the other hand. An apparent conflict is one where the content of two or more norms is at first glance contradictory, yet the conflict can be avoided, most often by interpretative means. A real conflict represents an irreconcilable divergence between norms which cannot be interpreted away and can only be solved by the application of a conflict rule. The notion of intra WTO conflict is largely unexplored and consequently under-theorized. It is explored here not as an abstract notion, but rather against the backdrop of the institutional and normative environment of the WTO. It is submitted that intra WTO norm conflict is hardly likely to arise as a legal issue under WTO law. This is because the normative and institutional environment of the WTO militates against treating overlapping WTO provisions as situations of real norm conflict. This environment allows for, and potentially mandates a judicial approach to intra WTO conflict that accords with the telos of the single undertaking nature of WTO rights and obligations. In the result, intra WTO conflict will possibly never be real; will often be deemed as merely apparent; and will sometimes be avoided.

Untangling the Mutatis Mutandis Principle in Free Trade Agreements: Using the WTO to Understand FTAs

It is common to find in the texts of Free Trade Agreements (FTAs) around the globe, provisions incorporated mutatis mutandis from the World Trade Organization (WTO) agreements. The incorporation of a WTO provision under this expression makes it necessary to determine the likely effects of such inclusion in FTAs. Little has been written about this issue despite more and more treaties make use of this expression to incorporate WTO provisions. This document presents an approach to this matter, concluding that the use of mutatis mutandis increases the interplay between the WTO and the FTAs.

Sustainable Development: Linking the Convention on the Diversity of Cultural Expressions to WTO?

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Convention on the Diversity of Cultural Expressions), adopted on 20 October 2005, has breathed new life into the ‘trade and culture’ debate. Witness the fact that several scholars have discussed the position of the Cultural Diversity Convention in relation to the rules of the World Trade Organization (WTO). This literature on the Convention on the Diversity of Cultural Expressions describes three possible hypotheses on how the Convention on the Diversity of Cultural Expressions, as part of public international law, could play a role within the framework of WTO. First, the Convention on the Diversity of Cultural Expressions could be invoked as a defense to claims under WTO covered agreements (WTO claims). This defense would be independent from the exceptions expressly mentioned in the WTO agreements. Second, the Convention on the Diversity of Cultural Expressions may be used to interpret WTO provisions relevant in a WTO claim. Third, the Convention on the Diversity of Cultural Expressions might indirectly influence the WTO by offering its members an improved bargaining position during WTO negotiations. Yet, not everything has been revealed. This paper is going to argue that the concept of sustainable development may bring the Convention on the Diversity of Cultural Expressions and the WTO regime closer to each other.

Implications of the World Trade Organization in combating non-communicable diseases

The World Health Organization (WHO) has proposed a number of strategies to combat non-communicable diseases such as cancers, cardiovascular diseases, chronic respiratory diseases and diabetes by targeting the risk factors of tobacco use, harmful use of alcohol and poor diet. A number of the domestic regulatory responses contemplated by WHO and individual countries have the potential to restrict or distort trade, raising the question of whether they are consistent with the obligations imposed on Members of the World Trade Organization (WTO). This article demonstrates that WTO rules do limit Members' flexibility in implementing public health measures to address these diseases. However, the focus of WTO provisions on preventing discrimination against or between imports and the exceptions incorporated in various WTO agreements leave sufficient scope for Members to design carefully directed measures to achieve genuine public health goals while minimizing negative effects on international trade.