WTO Law Research Articles

NAVIGATING THE REGULATORY LANDSCAPE OF VOLUNTARY SUSTAINABILITY STANDARDS IN INTERNATIONAL FOOD TRADE: A MULTILATERAL INTERPLAY - DOI: 10.12818/P.0304-2340.2024v85p171

Voluntary sustainability standards (VSSs) are non-mandatory criteria designed to foster sustainable practices throughout the global supply chain. These standards are particularly prevalent in the agri-food sector, where they aim to support wider public policy objectives such as sustainable food production, animal welfare, healthy lifestyle, and labour conditions. Significant challenges arises from the fact that VSSs, despite their voluntary nature, they often impose mandatory effect in the global supply chain. They also often lack easily-identifiable features of the product themselves. These creates systematic problems for the global food trade system, where conventional regulation address governmental measures on goods with specific inherent characteristics that can be clearly identified in the final product. This article explored the interrelationship among private VSSs, national regulations and international treaties within the agri-food industry. It highlights ambiguity surrounding the regulatory framework for VSSs under the WTO law, noting the absence of a consensus on how relevant provisions should be interpreted. Despite the diversity among various VSSs, VSSs, this article argues for the potential for harmonization and equivalence among VSSs. By aligning various VSSs and with technical regulations, it is possible to strike a balance between trade liberalization and promotion of sustainable practices.

Транстихоокеанское партнерство и всестороннее региональное экономическое партнерство как международно-правовая модель экономической интеграции в Азиатско-Тихоокеанском регионе

The article explores international law aspects of the contemporary integration processes in the Asia-Pacific with a specific focus on such relatively new formationsas the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Based on the WTO law provisions with regard to the free trade areas for goods and services, both Partnerships significantly widen the scope of regulated inter-governmental relationships, which allows considering the TPP and the RCEP as a fundamentally new form of the regional trade agreements. Having a fixed number of participating states and a system of institution with their functions and competencies, the Partnerships do not represent inter-governmental organizations and are vested with no legal capacity or, especially, supranational powers. However, this does not undermine the trade and economic significance of the Partnerships while also making them an attractive model of the soft integration structure between the states having different level of economic development, located in different geographical regions and bound with their own integration obligations under bi- and multilateral (subregional) trade agreements. The founding agreements of the Partnerships are typical “WTO plus” arrangements combining the provisions on liberalization of trade in goods and services with the parties’ mutual obligations in the fields of investments, sustainable development, competition, administrative and legal cooperation. At the same time, applicability of parallel bi- and multilateral trade agreements between the Asia-Pacific states, including those within ASEAN, forms a complex multilayer regulation of foreign trade and entails a risk of legal uncertainty for economic operators.

On some aspects of the WTO Jurisprudence and Dispute Settlement Mechanism

The paper first explores certain aspects of dispute resolution mechanism implemented within the World Trade Organization and then proceeds with the legal analysis of a number of legal presumptions, concepts and principles both of procedural and substantive legal nature developed and applicable within the framework of the above mentioned mechanism for resolving disputes between the WTO member-states. The Paper examines the main features that distinguish the dispute resolution mechanism used within the WTO from the GATT mechanism, which mechanism, i/e/ the one implemented within the WTO framework, is recognized to be more legal in nature in contrast to the more political nature of the GATT dispute resolution mechanism, given that under the GATT mechanism the direct negotiations had more weight in reaching the final settlement than within the WTO system, where formal juridical disciplines, as the practice of dispute settlement indicates, play far more role and has become a key element of the system. Also, certain procedural presumptions and principles applicable in the adjudication process as well as the procedure and feature characteristic for the enforcement of decisions are examined in the paper based on and with reference to the number of panel and Appellate Body decisions. Decisions delivered by panels and the Appelate Body represent a very important tool for the interpretation of the WTO law and shapes the practice of its implementation. In this regard, although it is not considered a formal source, Appelate Body and panel decisions should be considered as an important source of both procedural and substantive WTO law. The DSB practice established under the GATT/WTO law, on the one hand, defines a set of applicable procedural rules and on the other hand, develops the WTO substantive law by way of developing the criteria and rules governing the application of provisions of the WTO agreements and other sources governing rights and obligations of the member-states. Particular attention in this regard is paid to the peculiarities of the application of the principle of responsibility for lawful actions applied in the WTO jurisprudence, under the relevant WTO agreements and more specifically under the GATT, GATS, TRIPS and SCM Agreements. Also a number of procedural concepts the principles e.g. the “prima facie case”, “rational relationship” elaborated in the “Hormone” case, principle of multi-criteria assessment initially applied in «Korea - fresh, chilled and frozen meat» case and negative presumption rule applied by the panels are analysied.

The Legality of Inflation Reduction Act under WTO Law: Focusing on the Tax Credit for Clean Vehicle

The Legality of Inflation Reduction Act under WTO Law: Focusing on the Tax Credit for Clean Vehicle

Exempting Least Developed Countries from Border Carbon Adjustments: Simple Economically but Complex Legally

AbstractThe EU has introduced a Carbon Border Adjustment Mechanism (CBAM), which extends its carbon prices to imported products in some sectors. Increasingly considered by other countries, such border carbon adjustments (BCAs) are facing a global backlash against the lack of consideration of the adverse impacts on developing countries and particularly, least developed countries (LDCs). This article first argues that small overall import volumes support the conclusion that exempting or lessening BCA requirements from LDCs would not undermine developed countries' climate-related objectives in practical terms. An economic analysis of EU and UK trade in relation to a CBAM supports this assertion. However, legally, such an exemption or development-based preferential treatment is difficult under existing multilateral trade rules and jurisprudence, owing to the legal characterization and objectives of BCAs; their interaction with existing special and differential treatment (SDT) provisions; and complexity of available policy options. We thus highlight the gap between normative aims of SDT provisions to support development, and current WTO law and jurisprudence which expose WTO members providing preferential treatment to allegations of discrimination. With increasing unilateral climate action, an inability to integrate SDT more meaningfully into WTO non-discrimination frameworks risks further weakening of international cooperation on climate and trade.

Enforcement of Multilateral Trade Regulation by Non-State Actors – Desirable and Feasible?

Abstract Since its inception, the inter-state dispute settlement system of the World Trade Organisation has generally been praised for effectively protecting the rule of law in international trade relations. While the relatively recent dismantling of this system does not necessarily mean the end of the WTO nor of the binding nature of its rules, the current crisis may be a good opportunity to reconsider the role of the rule of law in international trade relations and the ways in which it could further be accommodated. One suggestion, occasionally raised in the past, would be strengthening the enforcement of WTO rules by opening it to private action, either before national courts or through international adjudication. After all, the latter has been widely available to foreign investors covered by thousands of international investment agreements in force for decades. This contribution recalls the reasons behind the current lack of private enforcement of WTO law and argues that developments in international trade relations and experiences with investor-state dispute settlement are likely to work against rather than in favor of its introduction in the foreseeable future. Increased transparency and institutionalisation of non-state actors’ role in trade enforcement is therefore recommended instead.

Steel, security and the WTO Dispute Settlement Mechanism: A trade catastrophe in the making

AbstractThe World Trade Organization's (WTO's) Dispute Settlement Mechanism has been rendered ineffective by the refusal of the United States to allow appointments to its Appellate Body. The implicit reason for this poor state of affairs is the desire of the United States to protect its steel sector under the WTO's national security exception. The arguments made by the United States in this regard are mostly spurious and reflect its status as a current bad faith actor within the WTO. The posture of the United States is undermining both the effectiveness and legitimacy of this important trade institution. This article examines both the events leading up to this situation, the commercial interests behind them, and their legitimacy under WTO law.

The EU’s Anti-coercion Instrument: A Return of Unlawful Unilateral Trade Countermeasures in Disguise?

The European Union (EU) adopted an Anti-Coercion Instrument (ACI) to counter economic coercion and weaponization of economic dependencies. This article analyses the potential application and interaction of the EU’s ACI with the World Trade Organization’s (WTO’s) legal framework. In particular, the article examines the EU’s claim that the ACI is solely governed by general customary law, justifying countermeasures in response to unlawful economic coercion. A closer look reveals the legal complexities and challenges associated with implementing the ACI within the broader context of the WTO. Actions taken under the ACI that seek redress for WTO law violations could potentially be in violation of the WTO’s Dispute Settlement Understanding (DSU). Additionally, justifying a violation of WTO law based on the enforcement of general customary law on countermeasures is unlikely to be accepted. While it is difficult to evaluate the ACI’s application in theory, the article also questions the validity of public morals and national security as justifications for response measures under the ACI. The outcome of potential WTO litigation pertaining to the ACI is difficult to address in the abstract, yet future cases hold the potential to provide further clarity on the interplay between the WTO regime and general international law. Anti-Coercion Instrument, Open Strategic Autonomy, Economic Coercion, Countermeasures, WTO Dispute Settlement Mechanism

A Proposal to Address Problem of Non-Compliance With The World Trade Organization Dispute Settlement Body Rulings

Objective: This study aims to analyze the problems of non-compliance with several of the rulings of the Dispute Settlement Body of the World Trade Organization and how to overcome the problem to increase the effectiveness of the WTO Law. Methods: This research is normative legal research. The study uses secondary data consisting of primary and secondary legal materials. The data were analyzed by using qualitative method, and conclusions are drawn by deductive method. Result: Some of the WTO DSB rulings have status the compliance proceedings is completed with findings of non-compliance. It meant that some of the WTO DSB rulings were not implemented. This could result in decreased the compliance with the WTO Law and further to hamper the achievement of the WTO objectives. Conclusion: The weakness of the enforcement measures led to non-compliance with some of the DSB WTO rulings. This paper proposes to strengthen the enforcement mechanism to overcome the problem of non-compliance with the WTO DSB rulings through the application of monetary compensation sanctions, temporary prohibition to make complaints and the establishment of WTO DSB rulings enforcement body. An effective WTO law enforcement mechanism was needed to increase international trade and World economic growth, so it was important in achieving the development program goals, including the Sustainable Development Goals.

PENGATURAN ANTI DUMPING DALAM HUKUM GATT-WTO DAN IMPLEMENTASINYA DI INDONESIA

This research aims to discuss the basis for anti-dumping regulations in WTO law and the implementation of WTO anti-dumping rules in Indonesia. This research is normative research with a statutory approach and a conceptual approach. Anti-Dumping Regulations in GATT-WTO Regulations. Internationally, the provisions for anti-dumping regulations are regulated in Article VI General Agreement on Tariffs and Trade (GATT) 1947 and as a step used to prevent dumping practices, then in 1967 it was implemented. signed the "Anti Dumping Code", Implementation of anti dumping regulations in Indonesia, the issuance of Law Number 7 of 1994 concerning ratification of the Agreement on Establishing the World Trade Organization (Approval of the establishment of the world trade organization/WTO) and the formation of a Indonesian Anti-Dumping Committee (KADI).

A Truly “Common” Commercial Policy? – A Legal Assessment of the Ban on Ukrainian Grain in the Interplay of WTO and EU Law

On 18 September 2023, Ukraine initiated proceedings against Poland, Hungary and the Slovak Republic under the WTO Dispute Settlement Understanding. This came in response to bans on Ukrainian grain imports which the three EU Member States had previously introduced. This unilateral conduct puts the common nature of the EU’s commercial policy, an exclusive Union competence, seriously into question. This article elaborates on that jeopardization of the common commercial policy by showing that the grain ban is violating WTO law and may result in retaliations affecting the EU at large. It then assesses whether nevertheless the commonality of the Union’s policy can be maintained both externally and internally. To this end, it elaborates on the practice of the Union in WTO dispute settlement and argues that the conduct of Member State organs is attributable to the EU. Furthermore, it analyses whether and on what basis infringement proceedings against the Member States may be successful. In this, it takes account of norms regarding the common commercial policy, the duty of cooperation, and the WTO Agreements as integral parts of EU law. To this end, special attention is paid to the CJEU’s jurisprudence on the legal value of WTO law and DSB Reports.

(European) Multilevel Constitutionalism to Govern Transnational Public Goods? A Reply to Petersmann

In the Article hereby commented, Ernst-Ulrich Petersmann further elaborates on his will-known thesis on the constitutionalisation of UN law and WTO law. Petersmann argues, first, that the EU provides a successful example in the governance of transnational public goods; secondly, that such success story is essentially due to the EU’s basic institutional arrangements, characterised as ‘mulitilevel constitutionalism’. Petersmann thus submits that die EU’s multilevel constitutionalism provides a viable template for the international community at large, and that the UN and die WTO should further proceed down the path of ‘hard’ constitutionalisation following the EU’s example. This Reply takes issue with the second of the Article’s assumptions. It thus argues that the notion of multilevel constitutionalism does not provide a descriptively accurate account of the structure of the European legal space. Rather, it is submitted, the literature on constitutional pluralism captures more adequately the reality of competing claims to final authority in structuring the relationship between national and supranational legal system in the context of the EU. Against this background, Petersmann’s claim the the ‘European model’ ought to be transposed to the globel stage can be nuanced. Rather than aiming at enforcing normative hierarchies through effective dispute resolution mechanisms, the ‘constitional’ value of (quasi-)universal fora such as the UN and the WTO can thus lie in the potential to provide a common ‘grammar’ to discursively structure the dialogue between competing normative views on globel affairs along lines of mutual intelligibility.

(European) Multilevel Constitutionalism to Govern Transnational Public Goods? A Reply to Petersmann

In the Article hereby commented, Ernst-Ulrich Petersmann further elaborates on his will-known thesis on the constitutionalisation of UN law and WTO law. Petersmann argues, first, that the EU provides a successful example in the governance of transnational public goods; secondly, that such success story is essentially due to the EU’s basic institutional arrangements, characterised as ‘mulitilevel constitutionalism’. Petersmann thus submits that die EU’s multilevel constitutionalism provides a viable template for the international community at large, and that the UN and die WTO should further proceed down the path of ‘hard’ constitutionalisation following the EU’s example. This Reply takes issue with the second of the Article’s assumptions. It thus argues that the notion of multilevel constitutionalism does not provide a descriptively accurate account of the structure of the European legal space. Rather, it is submitted, the literature on constitutional pluralism captures more adequately the reality of competing claims to final authority in structuring the relationship between national and supranational legal system in the context of the EU. Against this background, Petersmann’s claim the the ‘European model’ ought to be transposed to the globel stage can be nuanced. Rather than aiming at enforcing normative hierarchies through effective dispute resolution mechanisms, the ‘constitional’ value of (quasi-)universal fora such as the UN and the WTO can thus lie in the potential to provide a common ‘grammar’ to discursively structure the dialogue between competing normative views on globel affairs along lines of mutual intelligibility.

Automated shipping and WTO law: could a separate regime apply?

Automated shipping and WTO law: could a separate regime apply?

Нарушение западными странами права ВТО на свободу международного транзита

The relevance of the study is due to the fact that despite the fact that Part 2 of Article 5 of the General Agreement on Tariffs and Trade (GATT 1947), which is an integral part of the General Agreement on Tariffs and Trade of 1994 (GATT 1994), provides for freedom of transit, it is significantly limited at present due to the difficult geopolitical situation in violation of the rights of WTO members. This situation causes a sense of social anxiety among the public, primarily because, as a result of the international division of labor, the development of both global and national economies largely depends on the rule of law governing the transit movement of goods, services, capital and technology. For this reason, simplifying the transit procedure or ensuring its freedom is one of the main conditions for improving people's living standards, increasing employment and significantly increasing real incomes of the population. The subject of the study is the norms of international and national law in the field of ensuring freedom of international transit. The purpose of the work is to establish the role and importance of the WTO in national legal systems in which measures are taken and applied that are directly opposite to the WTO regulations. The study examines the specifics of the interpretation and application of WTO law, which do not allow exemption from liability in case of restriction and prohibition of transit through contracting States through the operation of certain acts of domestic or international law. It is concluded that, despite the once achieved victory of internationalism over nationalism in the field of international trade, the introduction of unilateral pressure measures restricting freedom of transit indicates the predominance of the latter in this area, which hinders the effective development of the world economy in the conditions of modern megatrends.

International Liability for Violation of “WTO Rights”: Functions of the WTO Dispute Settlement Body

Introduction. The article discusses the theoretical and practical features of the content of the rules on liability and their application by the Dispute Settlement Body of the World Trade Organization. Theoretical Basis. Methods. The theoretical basis was scientific developments in domestic and foreign doctrines concerning the responsibility of states and organizations under general international law and “WTO law”, which are of fundamental importance for the subject of analysis in the present. Among them are the works of Russian specialists – L. P. Anufrieva, D. S. Boklan, G. M. Kalachigin, A. Ya. Kapustin, Ya. S. Kozheurov, I. V. Rachkov, M. Trunk-Fedorova and others, as well as foreign authors – G. Arangio-Ruiz, J. Gomul, J. Pauvelin, D. Jackson, J. Crawford, E. W. Pietersmann and others. In preparing the article, such general scientific methods of cognition as systemic and structural analysis, synthesis, deduction, induction, analogy, formal logic, and private scientific special research methods were used: historical-legal, comparative-legal, formal-legal. Results. As a result of the analysis: a) a hypothesis is put forward about the existence of two “autonomous” (special treaty) regimes: the actual “WTO rights” in relation to general international law, on the one hand, and “responsibility in WTO law” as lex specialis in its relationship with the rules on liability in international law in general (lex generalis), on the other; b) a fundamental feature of the approach to international responsibility in the “WTO law” in the case of the use by its members of measures that do not comply with the norms of the “package” of WTO agreements, as opposed to how this happens when applying the “classical” positions of the law of responsibility in general international law with its inherent wrongful conduct, the basis of wrongfulness is the use of the presumption of “cancellation or reduction of benefits”. In light of this, complete disregard for the concept of “responsibility for violating WTO law” does not seem rational, bearing in mind that one way or another the term “inappropriate measure” is made dependent on the assessment of the behavior of subjects - in accordance with or not in accordance with WTO law; c) proposals are made to introduce into the Arrangement on Rules and Procedures Governing Dispute Resolution (hereinafter referred to as the ADR), provisions on “restrictive measures” to be applied to violators. This is especially important in the current period, when under the conditions of “sanctions pressure” against Russia, including from the side of the WTO member states, an unjustified asymmetry is being created: bypassing the fundamental principles of “WTO law”, the main foundations of international trade, declared throughout the the last decades, and as a rule, there is no question of responsibility for “wrongfulness”, i. e., “violation of the WTO law”, in the literal legal interpretation; d) in view of the clearly ongoing crisis in the WTO dispute resolution system due to failures in the work of the Appellate Body as its principal link, an appropriate interpretation of the WTO DRS is proposed in direct connection with the provisions of the Marrakesh Agreement in order to change the tools for electing members of the Appellate Body of the Resolution Body WTO disputes - not by consensus, but by voting. Discussion and Conclusion. In order to draw attention to the issues of the functioning of the WTO as a multilateral trading system that needs to ensure stability, sustainability and liberalization of the regulation of interstate trade relations, the article, in the course of analyzing the problems of international responsibility, gives a definition of the concept of “responsibility in WTO law”, and also proposes for discussion the introduction of some additional provisions, both relating to general approaches to said liability, and relating to non-enforcement of decisions of the Dispute Settlement Body.

How Cultural Cognition Informs Differential Treatment in WTO Law and the Climate Regime

Abstract Climate change is a core issue for sustainable development and exacerbates inequality. However, in both the WTO and the climate regime, disagreements over differential treatment have hampered efforts to address international inequalities in a way that facilitates effective responses to global issues. Sustainable globalization requires bridging the disparities between developed and developing countries in their capacities to address such matters of global concern. However, differential treatment now functions as a distraction from the global issues it was supposed to address. Cognitive biases distort perceptions regarding the climate crisis and the value of multilateralism. To what extent can cognitive science inform decision making by States? How do we change paradigms (cognitive background assumptions), which limit the options that decision-making elites in developed and developing countries perceive as useful and worth considering? To what extent do cognitive biases and cultural cognition create a barrier to multilateral cooperation on issues of global concern?

THE MULTIFACETED LANDSCAPE OF WTO LAW: A COMPREHENSIVE EXAMINATION OF ITS PRINCIPLES, RULES AND INSTITUTIONAL STRUCTURE

Giga Abuseridze
 E-mail: gabuseridze@cu.edu.ge 
 Ph.D in Law Caucasus University, Georgia 
 Riga Stradins University, Latvia
 https://orcid.org/0000-0003-2868-8719
 
 Abstract: This paper examines the fundamental tenets, regulations, and institutional framework of the World Trade Organization that constitute the intricate landscape of WTO jurisprudence. The author delves into the intricate and specialized character of WTO law, elucidating a diverse array of topics pertaining to the intersection of international trade and legal principles. Particular emphasis is placed on the foundational principles of equitable trade and the WTO, encompassing matters of legal pluralism and non-discrimination. Drawing upon a comprehensive examination of the multilateral panorama of WTO legislation, the presented paper makes a substantial contribution towards fostering a more profound comprehension of international trade regulation, trade transformation, and extant clearances.

Book Review: The Law and Economics of WTO Law: A Comparison with EU Competition Law’s ‘More Economic Approach’, by Marios C. Iacovides. (Cheltenham: Edward Elgar, 2021)

Book Review: <i>The Law and Economics of WTO Law: A Comparison with EU Competition Law’s ‘More Economic Approach’</i>, by Marios C. Iacovides. (Cheltenham: Edward Elgar, 2021)

Углеродный сбор Евросоюза:на пересечении климатической и внешнеторговой политики

The European Union (EU) is getting ready for the implementation of СBAM — the world’s first carbon border adjustmentmechanism. This article explores the correlation between intra-European and international facets of СBAM as two sides ofthe same coin: while appending the EU Emissions Trading Scheme, it is equally an instrument of foreign trade, immediatelytouching upon EU relations with trade partners and specialized international organizations. Once such correlation is takeninto account, it becomes evident why the design of the European carbon levy remains capable of improvement as far as fightingclimate change goes.The concept of multilevel governance assists this research as the basis for analyzing СBAM. The institutionalist approachclarifies the specifics of the European carbon border adjustment mechanism. They are important in order to scopeout its true perspective. In particular, the MLG approach helps to expose the blurred lines between market regulation andtax policy in European governance practice.The ways, if any, that СBAM differs from a carbon tax and, at the same time, is similar to a carbon tariff are considered.A reappraisal made in the article of this hybrid measure makes it possible to draw a conclusion that, as envisioned bythe European Commission, it is meant to ensure more favourable conditions for investments in cost-intensive, low-carbontechnologies while suppressing competition from cheaper, high-carbon imports. At the same time, so as to avoid unleashingtrade wars, it is important for the Commission to assure the maximum possible conformity of СBAM to the World TradeOrganization’s (WTO) legal requirements. Compatibility with WTO law would enhance the ecological legitimacy of theregulatory mechanism in question. It would make sure that international partners would not regard СBAM as a form ofgreen protectionism.Further, the subtle aspects of preferences in terms of СBAM design are discussed, as held by the Commission, EUmember states, the European Parliament, and the representatives of European carbon-intensive industries. Particular attentionis paid to the discussion in the EU on the issue of connecting export rebates for inside producers to CBAM.