WTO Member States Research Articles

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.

청정수소 인증제에 대한 통상법적 고찰

A clean hydrogen certification scheme can be designed in the form of mandatory technical regulations or voluntary standards, and it is very important by what criteria clean hydrogen will be classified. The technical regulations and standards of the TBT agreement include those for PPMs, and it has been debated whether NPR-PPMs that are not directly related to the final product, such as a clean hydrogen certification scheme, can be included. In particular, in the case of technical regulations that include labeling requirements, such as Korea’s clean hydrogen certification scheme, it can be even more problematic to what extent NPR-PPMs will be applied.
 Based on the premise that the scope of the TBT agreement can include NPR-PPMs, the issues of international trade law that may arise from the clean hydrogen certification scheme were examined, focusing on the TBT agreement. First of all, the clean hydrogen certification schemes introduced by the central government of WTO member states are likely to be recognized as a ‘technical regulation’ due to its mandatory nature. In addition, inspection, tests and samplings conducted to satisfy the requirements of the technical regulation of the clean hydrogen certification scheme can be evaluated as a ‘conformity assessment procedure’. Even in the case of voluntary ‘standard’, there is also a clean hydrogen certification scheme created by non-governmental standardizing bodies in each country. Therefore, the implications of the clean hydrogen certification scheme as a technical regulation or standard and the related conformity assessment procedure in the TBT agreement were examined.

Implementation of the Paris Climate Agreement in the Legal Systems of the EAEU Member States

The Paris Climate Agreement provides for the acceptance by the participating States of obligations, which this treaty enshrines as «nationally determined contributions» (NDC). The goal of these commitments is to reduce greenhouse gas emissions and keep global temperature increases well below 2°C compared to preindustrial levels. This mechanism has a number of legal features: first, each state establishes NDC independently, reports them to the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC), acting as the meeting of the Parties to the Paris Agreement, and registers them with the Secretariat. From this moment, a new international legal obligation of the state to implement the NDC arises. Secondly, it can be changed only in the direction of greater «ambition», that is, by increasing targets for limiting greenhouse gas emissions. Thirdly, the Paris Agreement does not require the coordination of national measures with the rest of the parties to the treaty. Each participant in the Paris Agreement represents an NDC, which determines the scope of its own obligations without the participation of other states, unlike the mechanism provided for in the GATT and GATS, where WTO member states are required to coordinate their national measures with the rest of the participants (Goods schedule / Services schedule). Fourthly, the monitoring mechanism provides for the first stage of summing up in 2023, when an assessment of the progress towards achieving the goals of the Paris Agreement will be given.A comparative analysis of the NDC of the EAEU member states, all of which are parties to the Paris Agreement, allows us to generalize. The Republic of Kazakhstan and the Russian Federation announced the achievement of carbon neutrality by 2060, the rest of the states — by 2050. Some states (the Republic of Belarus, the Kyrgyz Republic, the Republic of Kazakhstan) have set two targets for the implementation of NDC: conditional (achievement of the indicator with international financial support and access to modern technologies) and unconditional (achievement of the indicator at own expense). The level of development of the legal framework for the implementation of the NDC of the Republic of Armenia, the Republic of Belarus and the Kyrgyz Republic is inferior to the level of the Russian Federation and the Republic of Kazakhstan in terms of limiting greenhouse gas emissions, turnover of carbon units and taxation of carbon emissions (introduction of a carbon tax). At the EAEU level, the member states have adopted a roadmap on the climate agenda, and much work remains to be done to develop a regulatory framework.

The Negative Investment List Policy in Indonesia: A Review of Free Trade and the Conservation of Endangered Fish Species

This study examines and analyzes the problems arising from the interaction between Indonesian investment measures and compliance with the international trade regime. This study uses a normative legal research method. The collected legal material is then qualitatively analyzed to describe the problem and answer the study objectives. The results show that Indonesia has successfully justified the alignment of its Negative Investment List policy regarding endangered fish species, listed in Appendix I of CITES juncto Article XX of the GATT 1994. On another note, the Dispute Settlement Body may issue rulings with differing considerations. Nonetheless, the WTO Agreement and CITES are provisions established to provide adequate negotiation space for all their members. Thus, CITES and WTO member states should refrain from raising disputes over Indonesia’s investment measures if it restricts their economic interests and market access within Indonesia. Therefore, it is recommended that the WTO and CITES members recognize and appreciate the Negative Investment List policy in maintaining a balance between investment development and the protection of endangered fish species. Furthermore, stakeholders are urged to delve deeper into the principles and objectives of the WTO and CITES Agreements. Additionally, the members of the relevant organizations must collaborate in a spirit of solidarity and environmental awareness, prioritizing dialogue, consultation, and negotiation over dispute legal action that could complicate the situation. In this context, multilateral dialogue can serve as an effective platform for mediating diverse interests and seeking sustainable solutions that benefit the economy and the conservation of endangered fish species.

Indonesian Trade Policy in Adjusting the 2020 WTO’s Trade Policy Review

This article analyzes the Trade Policy Review Body (TPRB) review of Indonesia in 2020, mainly in the agricultural sector, and how Indonesian compliance with the WTO Agreement is helpful for the Trade Policy Review Mechanism (TPRM). This study uses the normative method by gathering primary and secondary legal sources. The 2020 TPRB review perceives that Indonesia has applied untransparent safeguard measures related to its agricultural products, prohibited subsidies, and quantitative restrictions on other WTO member states. However, the Job Creation Law, launched in 2020, can be viewed as a proportional law as it puts imported products in an equivalent position with domestic agriculture or food products. The discussions reveal that Law No 11/2020 aims to balance its national interest with the WTO Agreement and the TPRB review of Indonesian trade policy, mainly in agriculture. With such legal certainty, this article recommends that Indonesia consider the TPRB review in good faith by invoking transparent safeguards, reducing its export subsidies on agricultural products, conducting a persistent report to the Committee on Agriculture, and protecting its public health and morals. The Indonesian government should also conduct text mining to determine its trade policies and deal with international trade uncertainty.

Політика публічних закупівель у реалізації стратегії цифрової трансформації: пріоритети ЄС та України

The aim of the article is to study the policy of public procurement and the scientific substantiation of its priorities in the context of the implementation of the digital transformation strategy in the EU and in Ukraine. The research methodology is based on the content analysis of the digitalization policy of public procurement used in the practice of both the EU and Ukraine, as well as in its scientific generalization to substantiate the priorities for the implementation of the digital transformation strategy. The authors examined the model of interaction of subjects of the public procurement market in the EU with the use of digital tools. It is found that the harmonized EU rules in the field of application of common digital public procurement instruments are designed to ensure fairness, transparency and non-discrimination in determining participants in public contracts, to which not only EU companies are admitted, but also the representatives of WTO Member States that have signed the Agreement on Government Procurement. The article discloses the stages of introduction of digital public procurement tools in the EU and in Ukraine. It is determined that in the EU, the process of digitalization of public procurement began in the second half of the 2000s with the introduction of an electronic diary of tenders, significantly intensifying in the second half of the 2010s with the adoption of a package of the EU directives in the field of public procurement and the phased introduction of digital tools (invoices, forms, applications for tenders, the European single procurement document, etc.). The current stage of transformation of digital public procurement tools in the EU was marked by the introduction of a single space for these public procurement in the EU from 2023. The priority directions of digital convergence of the public procurement systems of the EU and Ukraine are substantiated, including the development of cooperation tools for joint public procurement, promotion of competition, countering the corruption, as well as strengthening the professionalization of the public procurement systems.

GOVERNANCE OF PROTECTIONIST MEASURES WITHIN THE WTO

The purpose of the study is to determine the prospects for development of protectionism as the dominant paradigm of countries’ economic policies in the context of supranational regulation of international trade within the World Trade Organization (the WTO, Organization). During the study it was found out that the tools of modern protectionism include non-tariff import restriction measures, as well as fiscal and administrative measures to support production and export. The use of these tools contributes to an increase in compensation protectionist measures by trading partners. It was revealed that the WTO mechanisms limit the range of protectionist measures by participating in the provision of balance of interests of the WTO member states. The article concluded that in spite of the WTO crisis, manifested in the inability to reach new agreements based on the principle of consensus due to differences in the goals and interests of the participating member states, the WTO is interested in the safety and functioning of this institution. Participation in the Organization provides relatively non-discriminatory access of goods on foreign markets, and also allows you to defend the interests of the country during discussion of the modernization issues within the existing international trading system. At the same time, as it was noted, in the context of the WTO crisis, alternative platforms for implementation of economic interests of states are becoming regional economic units of different forms of integration.

WTO체제하에서 강력한 지식재산권의 보호에 관한 연구

Purpose : This paper examines how The U.S has led to global intervention in the issue of intellectual property protection and proposes a multilateral approach to the demand for a strong level of intellectual property protection. Research design, data and methodology : This paper examines the WTO agreement specially Trade-Related Aspects of Intellectual Property Rights(TRIPS) and analyzes the relevant articles, the developing history of the United States relating IP regime and IPR protection modes. Results : When emerging economies such as China, Brazil, and India become strong and innovative countries, and these countries reflect the US IPR system as it is in creating their intellectual property systems, it may eventually lead to a dilemma. Conclusions : A lot of effort is still needed for WTO member states, except for developed countries, to meet the high-level IPR protection and implementation system that the US insists on. Therefore, it would be most exemplary if the current TRIPS improvement could escape the dilemma of focusing on strong IPR protection and implementation.

INTELLECTUAL PROPERTY: THE PROBLEM OF EFFECTIVE PROTECTION WITHIN THE FRAMEWORK OF T

The history of the formation of intellectual property protection in international relations dates back not so long ago, but nevertheless, the world community is trying to develop legislation in this area so that the sphere of intellectual property is not inferior to others. The presence of exclusive new inventions characterizes the prestige of the state both in the domestic market and in the external one and sets the vector of development for international integration associations. To date, the concept of «intellectual property» and the regulation of the protection of this category are firmly entrenched in national and international acts and regulations. This is due to the need to protect the economic and moral aspects of the creators of exclusive creative works. In addition, it is necessary to protect intellectual property for favorable international cooperation, which allows increasing the statistics of the legal sale of intellectual property in international trade relations. The problem of illegal trade in intellectual property rights has long acquired an interstate character, and in recent years has reached enormous proportions. Artificial intelligence, not burdened with moral restrictions, processes huge amounts of information about the results of humancreated intellectual activity in the global network with great speed and easily creates pseudo-creative works on its basis. At the same time, the financial prosperity of many countries at the external level depends on the stable development of international trade, including intellectual property, and the problem of international cooperation in this area remains relevant even in a tense international situation. This article is devoted to the study of this problem. In the course of the study, three main stages of dispute settlement in the WTO were identified, and the decisive importance of consultations as the most effective means of their pre-trial resolution was noted. Against the backdrop of the growing crisis in the WTO dispute resolution system, it was concluded that in the near future, the creation of bilateral and multilateral cooperation between WTO member states is expected in order to ensure mutual agreements by alternative means.

DIGITAL SERVICES TAX REGULATION AND WTO NON-DISCRIMINATION PRINCIPLE: IS THE DECK STACKED?

A growing debate on the imposition of digital services tax emerged as one of the latest trade war battlegrounds. Indonesia and the European Union (EU) are among the countries that have taken unilateral actions to implement digital services tax. This paper examines (i) digital services tax regulation in Indonesia and the EU and (ii) whether the digital services tax regulation violates the non-discrimination principles of WTO according to the GATS. By comparing the statutory and practice of digital services tax in Indonesia and the EU, this work concludes that firstly, digital services tax in Indonesia is regulated by law, which implements significant economic presence (SEP) criteria. In the EU, digital services tax is regulated through the Council Directives and implements ring-fencing method as well as SEP criteria. Secondly, the non-discrimination principles in the GATS are promulgated in Article II concerning Most-Favored Nation Treatment and Article XVII concerning National Treatment as well as relevant jurisprudence of WTO case laws. Indonesia and the EU’s digital services tax regulation are not discriminatory, because based on existing indicators, the existence of both de jure and de facto discrimination is not proven. This paper suggests that in the event that there are member states who decide to challenge the measures to the WTO, Indonesia and the EU should provide evidence that shows the absence of unfavorable treatment of certain WTO member states in digital services tax practices by Indonesia and the EU.

Regulatory Autonomy under the WTO Agreement on Sanitary and Phytosanitary Measures: Implications of Korea–Import Bans, and Testing and Certification Requirements for Radionuclides

AbstractThe recent WTO dispute case, Korea–Import Bans, and Testing and Certification Requirements for Radionuclides, illustrates complex legal issues and significant political implications associated with the regulatory autonomy of a sovereign country under the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement). There has been constant tension between the sovereign right of a WTO member state to determine its own appropriate level of protection (ALOP) and the regulatory constraints imposed under the SPS Agreement to prevent abuse and disguised trade protection. The case emerged from this tension and raises questions on the extent of the regulatory autonomy in the application of an SPS measure. This article addresses these questions and examines the criteria for the qualitative standards for the ALOP, the question that the Appellate Body decision did not fully resolve. The criteria for the qualitative ALOP standards affect the regulatory autonomy significantly under the current SPS rules as they determine the manner and the extent to which a Member may meet the sensitive public interests in the application of an SPS measure. The article proposes a rational basis test to restrain abuse of SPS measures while preserving the regulatory autonomy protected under the SPS Agreement.

WTO Appellate Body Without Legitimacy?: The Criticism of the Dispute Settlement System and the Response of the WTO Member States

Is there any practical value to international agreements without enforcement instruments? And can the multilateral rules of the world trade system hold the trust of the Member States, so that they continue to adhere to the mutual benefits and obligations under WTO law – even if the WTO dispute settlement system is totally or even partially incapacitated? One of the key achievements of the Uruguay Round was that the Member States provided the world trade system with a dispute settlement system. However, this is increasingly being challenged: last December, the USA continued to withhold its consent for the required replacement of vacant positions, thus rendering the WTO Appellate Body indefinitely unable to carry out its function. The report by the US Trade Representative seeks to justify this with a central statement claiming that the Appellate Body lacks legitimacy. This article discusses the different viewpoints on the future shape of WTO dispute settlement. The author argues that the causes of the ‘blockade’ in WTO dispute settlement are not, as some parties maintain, deficiencies in the dispute settlement system and its practice. Rather, the ‘blockade’ should be viewed as the result of causes outside of the dispute settlement process itself. In a radically changed political and trade environment, an increasingly important view is becoming established, according to which the current world trade system, with its multilateral liberalization concept, is less and less able to satisfy significant economic interests of important Member States. Consequently, the WTO is receiving ever diminishing support – but is there any sign that changing the multilateral framework will allow it to adapt to the changing conditions? World Trade System, Multilateralism, Appellate Body, Dispute Settlement, US Trade Representative, Blockade, Dispute Settlement Body, Rules and Procedures Governing the Settlement of Disputes, China, Emerging Countries, Belt and Road Initiative, Biden-Presidency, WTO Security Exceptions,

Effects of variable EU import levies on corn price volatility

The variable import levy for corn imports in the European Union aims to support European producers by insulating domestic prices from low international prices. Such price-insulating policies have been associated with an increase in global market volatility. Eliminating these distortions has been one of the key issues in international negotiations on agricultural trade liberalization, e.g., the commitment of WTO member states to follow the principle of tariffication as part of the Uruguay Round Agreement on Agriculture. Nevertheless, the Blair House Agreement effectively allowed the EU to maintain a variable import levy regime for grain imports, although the magnitude of this levy is substantially smaller than in the past. Notwithstanding that this policy has been a cornerstone of the EU’s Common Agricultural Policy, empirical evidence on the magnitude of its effects on price volatility is largely missing. This paper employs a multivariate asymmetric volatility model to assess these effects on domestic and foreign corn markets, using Argentina – a large exporter of corn – as an example. In line with the relevant theoretical literature, we find empirical evidence for the 2002–2017 period that the variable import levy reduced corn price volatility in the EU market, while significantly increasing volatility to the same extent in Argentina. In a distorted sense, the import levy of the EU has thus been a success, as its variable application rate has stabilized prices in the EU domestic market. However, our results show that this policy has merely shifted price volatility abroad since it has led to increases in price volatility in Argentina. A less distortionary policy to target the problems of agricultural price volatility should shift its focus away from direct price interventions. For instance, domestic policies that improve farmers’ ability to cope with price-related risks would avoid the negative effects of domestic price stabilization in foreign countries.

Recognition and protection of copyright objects under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights

The article is devoted to the problem of copyright protection under the existing agreements of the World Trade Organization. The analysis of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) which occupies the central place in the system of WTO normative legal acts is presented in the study. The paper reveals certain categories of intellectual property rights subject to protection under this Agreement, procedural aspects of the acquisition and preservation of copyrights, as well as minimum standards for the intellectual property rights protection adopted by WTO member states. It is concluded that copyright protection depends not only on substantive rules that provide for minimum standards of protection, but also on procedural and legal mechanisms that provide effective ways to ensure compliance with these rules. The article highlights the unique role of the TRIPS Agreement in the sphere of copyright and intellectual property rights protection in international trade.

The problem of Russia’s interaction with the WTO member states in the context of sanctions pressure

The problem of Russia’s interaction with the WTO member states in the context of sanctions pressure

ЦИФРОВА ГЛОБАЛІЗАЦІЯ В ЕПОХУ ЧЕТВЕРТОЇ ПРОМИСЛОВОЇ РЕВОЛЮЦІЇ: ПОТЕНЦІАЛ ТРАНСФОРМАЦІЇ

The article considers the potential for transformation of the world economy under the influence of digital globalization in the era of the fourth industrial revolution. It is substantiated that within the framework of digital globalization the paradigm of organization of production, configuration and content of international trade are changing. At the same time, the process of digitalization leads to qualitative changes in all spheres of production, economic and trade activities around the world. Formation of production technological processes using the Internet of Things, modules of artificial intelligence and 3D-printing allows to reduce production costs and increase the competitiveness of products. Attention is focused on the essence of the changes taking place, the directions of the vectors of economic development in the context of the changing digital space. Particular attention is paid to the functioning of new business models (in particular, digital platforms), the transformation of the structure, configuration, forms and methods of international trade, as well as the impact of ongoing processes on international competitiveness. An important place is given to the problems of e-commerce, the content of the processes taking place in this segment of international economic relations. Some approaches to solving the problems of digitalization at the international and national levels are proposed. In the global dimension, it is important to ensure, through the adoption of binding legal documents for WTO member states on the freedom of information exchange, aimed at stimulating innovative development, promoting the removal of barriers in the e-commerce segment, encouraging investment in digital infrastructure and human capital. . The development of the country's digital potential and digital infrastructure involves the implementation of localization measures, ie requires the creation of national platforms for the accumulation and storage of information. It is concluded that the global process of digitalization creates the potential for dynamic development of new business models, stimulates productivity and increases competitiveness.

Regulatory Autonomy under the WTO Agreement on Sanitary and Phytosanitary Agreement: Implications of Korea – Import Bans, and Testing and Certification Requirements for Radionuclides

The recent WTO dispute case, Korea – Import Bans, and Testing and Certification Requirements for Radionuclides (Korea – Radionuclides), illustrates complex legal issues and significant political implications associated with the regulatory autonomy of a sovereign country under the WTO Agreement on Sanitary and Phytosanitary Agreement (SPS Agreement). There has been constant tension between the sovereign right of a WTO member state to determine its own appropriate level of protection (ALOP) and the regulatory constraints imposed under the SPS Agreement to prevent abuse and disguised trade protection. The case emerged from this tension and raises questions on the extent of the regulatory autonomy in the application of an SPS measure. This article addresses these questions and examines the criteria for the qualitative standards for the ALOP, the question that the Appellate Body decision did not fully resolve. The criteria for the qualitative ALOP standards affect the regulatory autonomy significantly under the current SPS rules as it determines the manner and the extent of which a Member may meet the sensitive public interests in the application of an SPS measure. The article proposes a rational basis test to restrain abuse of SPS measures while preserving the regulatory autonomy protected under the SPS Agreement.

Why a COVID IP Waiver Is not a Good Strategy

The COVID-19 pandemic has a profound influence on all aspects of society. The development of successful vaccines in record speed is almost a miracle. But despite the successful development and approval of multiple vaccines, many people still die of this terrible disease, and there is an urgent need to see more vaccines manufactured and distributed across the globe. The proposed COVID-19 IP waiver has been touted by some to be the perfect solution to a terrible problem. We all agree that there is a terrible problem of insufficient vaccines to inoculate the world population. An IP waiver is not a good strategy however, to tackle this crisis. There are multiple more effective solution conceivable which do not require a very disruptive IP waiver. The problem of insufficient supply is much more complicated than a simple IP waiver suggests. This is a complex ecosystem, and there are many moving parts. Moreover, IP rights are only part of the problem relating to more supply of vaccine or therapeutics. In view of the complexities, it will probably take many months to negotiate any kind of IP waiver system that would be acceptable to all WTO member states, if consensus could be reached at all. And the end result is likely to satisfy very few if any countries. The legality of an IP waiver can be doubted, and it would require retro-active effect, a concept that should be extremely sparingly used. A multitude of complex issues needs to be sorted out. There are hundreds of patents to navigate. A waiver to the equally patented vaccine platform technology (covering many patents), which may be used to develop any other vaccine, will make those companies who have invested heavily into developing it very nervous indeed, to say the least. Crucial manufacturing know-how is often not protected by IP rights, but is kept secret, and it will be difficult to force companies to disclose that information, also because one does not know what to ask for. The present IP waiver proposal also provides for a disclosure of commercially very sensitive information. Companies did not have a chance to adapt their regulatory disclosure strategies to this new reality, which means that information which will be disclosed under the waiver could very well have a major negative impact on future innovation strategies, and may also hamper competitive advantage or leverage. Market exclusivity is arguably not covered by the IP waiver, which means that separate national statutory intervention will be required to ensure that this market exclusivity is set aside, absent of which the IP waiver cannot have any practical effect. A quick and determined use of compulsory licensing could be a better way forward, as they have the potential to be a powerful tool. There are inefficiencies in using the instrument however, and invoking them when the need is high will require a relatively long lead time before they sort practical effect. They also require additional statutory intervention to ensure that regulatory exclusivities do not block their practical effect. And they might not necessarily work as well with low and middle-income countries, who would have less leverage in the negotiations. More efficient solutions can be arrived at by introducing hard clauses into contracts in the context of push and pull mechanisms. Those obligations are much more likely to result in more supply in the shorter to medium term if they are agreed upon long before the vaccine enters the market. It is obviously too late for the contracts that have been concluded in the past, but it should be a template for the future.

Asean is in the Movement of Combating Corruption: Should New - Generation Ftas Be a Promising Forum for Anti-Corruption Enforcement of Asean in International Business?

Abstract For a long time, corruption has been a shrilling concern for ASEAN member states for the reason of being one of the primary causes restricting the integration of these nations into international trade and efforts at globalization. In fact, over the last few years, ASEAN has undertaken a myriad of policies and improved the regional legal framework to combat corruption such as the signing of UNCAC and new free trade agreements and the establishment of the ASEAN Economic Community. Notwithstanding this, according to the statistics of global organizations, the levels of anti-corruption in ASEAN countries, except Singapore and Brunei, are relatively low. This mainly derives from the fact that the national legal framework in each of the member states has not satisfied fully when the political regime lacks democracy, governmental authority is insufficiently impartial and the awareness of citizens about corruption is still moderate. Simultaneously, the international agreements to which ASEAN member states signed are only the model for domestic enforcement mechanisms, and seem to be silent on international enforcement of anti-corruption. To date, the WTO is known as a global agency for international business, to which all ASEAN countries have acceded. Under the WTO, there is no official mechanism for enforcement of anti-corruption; nevertheless, this organization acknowledges, encourages and states indirectly this issue via transparency, accountability or governance in their agreements (Government Procurement Agreement and Trade Facilitation Agreement). Under the Doha negotiation round, WTO member states failed to gain consensus to dismantle tariffs, resulting in the emergence of a myriad of bilateral and regional trade agreements out of the scope of the WTO. These have gradually developed to be so-called new-generation free trade agreements in the hope of mitigating the traditional trade barriers as well as lessening non-tariff ones, such as governance and transparency. The recent development of new-generation FTAs between ASEAN and/or ASEAN member(s) and the external trading partners that pay high attention to anti-corruption issues, i.e., EU, Australia, Canada, Japan, US, may create a promising forum for anti-corruption enforcement of ASEAN in international business in the future. This article will elaborate on all aforementioned issues before a reasonable conclusion is delivered.

The TRIPS Agreement Article 73 Security Exceptions and the COVID-19 Pandemic

The COVID-19 pandemic has caused Governments to contemplate measures to override patents and other intellectual property rights (IPRs) in order to facilitate production and distribution of vaccines, treatments, diagnostics and medical devices. This paper discusses whether the COVID-19 pandemic may be considered an “emergency in international relations” and how WTO Member States may invoke Article 73 (“Security Exceptions”) of the TRIPS Agreement as the legal basis for overriding IPRs otherwise required to be made available or enforced. It concludes that the pandemic constitutes an emergency in international relations within the meaning of Article 73(b)(iii) and that this provision allows Governments to take actions necessary to protect their essential security interests.