The EU-ACP Economic Partnership Agreements and the 'Development Question': Constraints and Opportunities Posed by Article XXIV and Special and Differential Treatment Provisions of the WTO

This article argues that Article XXIV and special and differentialtreatment (SDT) provisions of the WTO present a number of constraintsand opportunities to the design and scope of the proposed economicpartnership agreements between the European Union (EU) and African,Caribbean and Pacific (ACP) countries. It examines the negotiatingpositions of both sides to argue that were the EU's positionto prevail, ACP and other developing countries would likelysuffer an ‘erosion of the development principles’embedded within the WTO. It is shown that the differences betweenthe two groups over the desirability and/or applicability ofnegotiating free trade agreements between developed and developingcountries under the ‘strict’ jurisdiction of ArticleXXIV, and of negotiating agreements on services and the ‘SingaporeIssues’, amount to a contestation over the principlesof reciprocity and SDT within the WTO, and of the scope of theWTO.     

No More Negotiated Deals?: Settlement of Trade and Investment Disputes in East Asia

Many argue that East Asian countries have come to adopt ‘aggressivelegalism’ in trade and investment policy, in the sensethat they have come to settle their trade and investment disputesthrough the dispute settlement mechanism (DSM) of the WTO andthe other third-party procedures. Scrutiny of the dispute casesof these countries shows, however, that East Asian legalismis not so aggressive, that it varies country by country, andthat there still exists room for negotiated deals in settlingtrade and investment disputes among them. On the other hand,the recent move toward regional integration through free tradeagreements (FTAs), economic partnership agreements (EPAs), andbilateral investment treaties (BITs) in East Asia may lead tothe adoption of a more aggressive legalism in the region, inparticular in settling investment disputes, disputes relatingto intellectual property rights, and trade remedies.     

The Myth of 'Rebalancing' Retaliation in WTO Dispute Settlement Practice

It is generally assumed that trade retaliation under the WTOperforms some kind of ‘rebalancing’ by allowingthe injured Member to suspend ‘concessions and obligations’vis-à-vis the violating Member of a level equivalentto the level of ‘nullification and impairment’ sufferedby the injured Member. This article argues that this perceptionis misguided. The article first questions if a sensible comparatorexists with which equivalence for purposes of ‘rebalancing’could be evaluated. It then argues that WTO arbitration decisionsdo not even succeed in their limited goal of providing for retaliationthat will affect trade in the same amount as the WTO-inconsistentmeasure at issue. One reason is the use of an asymmetric andunderspecified trade effects comparator. The other reason isvery significant miscalculation of the trade effects of theviolation, as shown by detailed legal-economic analysis of allrelevant arbitration decisions. The decisions concerning countermeasuresagainst prohibited export subsidies do not make any attemptat ‘rebalancing’ in the first place. The articleconsiders political explanations of arbitration decisions. Itconcludes with some suggestions for improvement.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

Due Process and 'Good' Regulation Embedded in the GATS - Disciplining Regulatory Behaviour in Services Through Article VI of the GATS

On the occasion of the US – Gambling ruling, the GeneralAgreement on Trade in Services (GATS) came to the forefront.Several critiques against this ruling highlighted the urgentneed to clarify important concepts laid down in the GATS. Domesticregulation is arguably the overarching concept when it comesto trade in services, inter alia, because of the regulatoryintensity that characterizes many service sectors. Article VIof the GATS aspires to discipline non-discriminatory domesticregulatory measures. In this respect, World Trade Organization(WTO) Members are required to adhere to certain due processobligations and to develop additional rules of ‘good’regulation through the completion of the work program set outin Article VI:4 of the GATS. This paper provides a comprehensiveanalysis of Article VI. In doing this, it explores the objectivefunction and the mechanics of this provision bearing in mindthe delicate balance between trade liberalization and regulatorysovereignty that becomes apparent in Article VI more than inany other GATS provision.     

The Evolving American Policy on Investment Protection: Evidence from Recent FTAs and the 2004 Model BIT

Twelve years after the inception of the North American FreeTrade Agreement (NAFTA), the US policy on the protection offoreign investment is evolving. This article compares the provisionson investment in the recent US free trade agreements (FTAs)and the 2004 model bilateral investment treaty (BIT) with NAFTA’s.While most of the provisions are similar, some differences canbe identified, both in substantive and procedural forms. Weexplain this evolution by a learning process of the US administrationfrom the NAFTA experience. We argue that the new features ofthe FTAs and of the revised model BIT result from the US interestin reaching a better balance between the protection of investmentand the protection of state sovereignty. This American concernstems from a reaction to the claims filed by foreign investorsunder NAFTA Chapter 11, at least some of which were perceivedas ‘frivolous’ by the US government. However, therecent US FTAs and model BIT do not reveal a thorough policyreorientation but rather adjustments to the policy at the basisof NAFTA’s investment chapter.     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.     

Services Negotiations in the Doha Round: Lost in Flexibility?

The World Trade Organization (WTO) rules for services trade,under the General Agreement on Trade in Services (GATS), arefar broader in policy coverage than their counterpart provisionsunder the General Agreement on Tariffs and Trade (GATT), reflecting,inter alia, the Agreement’s extension to cross-bordermovements of services consumers and factors of production. Atthe same time, the GATS is significantly more flexible in applicationthan the GATT. There are virtually no political sensitivities,protectionist or not, that could not be formally accommodatedwithin its structure. Moreover, the paucity of relevant jurisprudenceon key concepts and a yet incomplete rule-making agenda haveprovided additional scope for ‘creative’ interpretation.However, while flexibility was a sine qua non for the conclusionof the Agreement, given the diversity of institutional conditions,political concerns, and so on among participants, it has notbeen conducive to one of the key objectives: ‘early achievementof progressively higher levels of liberalization’. Thisarticle discusses possible approaches that, within the Agreement’scurrent structure, could promote the clarity, quantity, andcommercial relevance of services commitments and address remainingrule-making issues. However, there is no panacea. The challengeremains to find a reasonable balance between economically meaningfuldisciplines and their broad application across sectors, modesof supply, and WTO Members.     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

The Case for a Multilateral Agreement on Competition Policy: A Developing Country Perspective

Although the issue of trade and competition policy has beendropped from the Work Programmes of the Doha Round of WorldTrade Organization (WTO) negotiations, it continues to be discussedin other fora and may return to the WTO after the completionof the Round. This article assesses the case for an agreementfrom the perspective of developing countries. It begins by reviewingthe ‘development dimension’ of the WTO debate andthen examines three specific antitrust issues that were of considerablerelevance to developing countries but were not pursued: exportcartels, anti-dumping and intellectual property rights (IPRs).There follows a critical assessment of the empirical and theoreticalarguments for the kind of agreement that was being advocatedto deal with international cartels. Alternative proposals, involvingdeveloping countries ‘outsourcing’ antitrust enforcementto developed countries, are also sceptically examined, as isthe relevance for developing countries of the kind of competitionpolicy that is currently in place in developed countries. Finally,a general approach to international trade agreements suggeststhat developing countries had nothing to gain from the proposalthat was on the table, and the article concludes by proposinga range of more suitable alternatives.     

Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Since the establishment of the Permanent Court of InternationalJustice in 1922, governments have consented to, and activelyused, an ever larger number of international and transnationalcourts, quasi-judicial dispute settlement bodies and ad hocarbitral tribunals for the settlement of disputes over the interpretationand application of rules of international law. Such judicialclarification of disputed interpretations of incomplete, intergovernmentalagreements reduces not only the negotiation costs of governmentsby delegating the clarification of contested facts and legalclaims to independent third-party adjudication. Judicial decision-makingat intergovernmental, transnational, national and private levelsalso supplements rule-making and offers citizens judicial remediesfor defending their rights and interests. Modern internationaleconomic law increasingly complements intergovernmental, legislative,and administrative governance by multilevel ‘judicialgovernance’ so as to protect rule of law more effectivelyfor the benefit of citizens (Section I). This contribution criticizesthe one-sidedly power-oriented perceptions of WTO law as ‘internationallaw among states’ (Section II) and the related perceptionsof international judges as dependent agents of states (Section III).Civil society, parliaments and democratic governments shouldencourage national and international judges to cooperate intheir legal task of interpreting citizen-oriented internationaleconomic law ‘in conformity with principles of justiceand international law’, as explicitly prescribed in theVienna Convention on the Law of Treaties (VCLT). The legal coherenceof multilevel judicial governance depends on protecting principlesof procedural as well as substantive justice and a common conceptionof ‘rule of law’ not only in intergovernmental relationsamong states, but also vis-à-vis their citizens engagedin, and benefiting from, international trade (Sections IV–VIII).     

E-Commerce in Light of International Trade Agreements: The WTO and the United States-Jordan Free Trade Agreement

E-commerce offers economy-wide benefits. World Trade Organization(WTO) members recognized the benefits e-commerce offers andhave developed a work program to facilitate the developmentof e-commerce. However, WTO efforts to facilitate e-commercehave stalled, leading to a slower than anticipated progress.As fundamental differences continue to stall progress in theWTO’s program on e-commerce, the United States concludeda free trade agreement with Jordan. This agreement was the firstever to incorporate explicit provisions on e-commerce. Thisarticle analyzes how existing trade agreements have dealt withe-commerce. The article gives an overview of the situation inWTO. The article then examines the e-commerce provisions inthe United States-Jordan Free Trade Agreement (US-JO FTA) andhow the parties have tackled the obstacles that stalled theWTO work on e-commerce. It concludes that the US-JO FTA approachregarding e-commerce did not move beyond what the WTO has alreadydone. It is argued that although there are specific provisionsdealing with e-commerce in the FTA, the parties left many loopholesto be filled.     

Rulemaking Amidst Growing Diversity: A Club-of-Clubs Approach to WTO Reform and New Issue Selection

The diverse nature of World Trade Organization (WTO) membershipmakes it highly unlikely that members will all be willing andable to sign on to the full range of agreements that many membersmight find desirable. The paper proposes an approach in whichthe WTO would supplement its core agreements with additional‘clubs’ to which only some members would subscribe.The approach is a compromise in which diversity can co-existwith a more extensive set of commitments for willing members.The paper provides suggestions for how the clubs would be selectedand how they would operate. Clubs would be chosen where theycould help promote the WTO’s central missions: loweringbarriers to trade, reducing the discriminatory effects of domesticpolicies, and enhancing economic development through trade.All WTO members would participate in negotiating club rules,but members would be free not to join. Clubs would use the DisputeSettlement Understanding (DSU) to deal with disputes, but suspensionof concessions in the event of violations would be confinedto the provisions of the same club in which the violation occurred.     

What Are Trade Agreements For? - Two Conflicting Stories Told by Economists, With a Lesson for Lawyers

Economists tell two stories about the function of trade agreements:trade agreements restrain protectionism, or trade agreementsrestrain the purposeful exploitation of market power, whichI call ‘terms-of-trade manipulation’. These storiesare distinct, because protectionism and terms-of-trade manipulationare distinct, although they are often confused. Logically, tradeagreements might restrain both protectionism and terms-of-trademanipulation, but no one holds this view. Protectionism theoriststhink terms-of-trade manipulation is rare in the real world;terms-of-trade theorists adopt a theoretical perspective inwhich they prove protectionism is globally efficient and shouldnot be restrained. I analyse the two stories to dispel commonconceptual confusions. I show that the protectionism story issuperior, empirically and theoretically: countries do not exploittheir market power, and the theoretical perspective of the terms-of-tradestory is wrong if our concern is to interpret agreements. Ireinterpret a theorem from the terms-of-trade story, and combineit with the fact that countries do not exploit market power,to demonstrate that national regulation that is domesticallyrational (except for not exploiting market power) is globallyefficient and hence should not be restrained. This grounds anovel, efficiency-based argument against ‘balancing’by dispute tribunals and in favour of substantial deferenceto non-protectionist regulation.     

Deceit and immorality in trade mark matters: does it pay to be bad?

LEGAL CONTEXT: This paper reviews some of the recent leading decisions of theOHIM's Boards of Appeal, interpreting Article 7(1) (f)–(k)of Council Regulation (EC) No. 40/94 of 20 December 1993 onthe Community trade mark (CTMR). KEY POINTS: Issues of public morality are considered in Grand Board's decisionin ‘Screw You’ and trade marks that deceive thepublic as to the nature, quality, or geographic origin of thegoods and services they cover are looked at in the ‘WineOh!’ case. The application of the public interest conceptunderlying heraldic signs, emblems, and geographical indicationsappearing on alcoholic beverages is also reviewed. PRACTICAL SIGNIFICANCE: The attempt to draw together some common threads of the decisionsin this area is designed to help practitioners understand whythe Boards of Appeal have reacted in a certain way to a particularsituation and where the limits currently lie.     

The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines under the Amended TRIPS Provisions

The entry into force of the World Trade Organization (WTO) TRIPSAgreement in 1995 transformed the international intellectualproperty system. The harmonization of basic intellectual propertystandards has operated to protect investment in innovation,limiting risks from unjustified ‘free riding’. Yetthese same harmonized IP standards sharply curtailed the traditionalcapacity of suppliers of public goods, such as health care andnutrition, to address priority needs of less affluent membersof society, particularly in (but not limited to) developingcountries. In the Doha Declaration, the Waiver Decision of 30August 2003 and the Article 31bis Protocol of Amendment, stakeholdersconcerned with re-opening policy space for the supply of newerpharmaceutical products pushed back against restrictive elementsof the TRIPS Agreement. Governments around the world are in the process of decidingwhether to ratify and accept the Article 31bis Amendment. Basedon their Study for the International Trade Committee of theEuropean Parliament, the authors argue that acceptance of theAmendment will provide a ‘net benefit’ for countriesseeking to improve access to medicines. At the insistence ofWTO delegations acting on behalf of the originator pharmaceuticalindustry lobby, Article 31bis regrettably is saddled with unnecessaryadministrative hurdles. Nonetheless, through skillful lawyering,political determination and coordinated planning, the systemcan be made to work. Among other options, expeditious back-to-backcompulsory licensing linked with pooled procurement strategiesmay effectively achieve economies of scale in production anddistribution of medicines. The authors doubt that the international political environmentwould support renegotiation of an ‘improved’ solution.They express concern that failure to bring the Amendment intoforce will open the door to a campaign to undermine the WaiverDecision. Recent events in Brazil and Thailand illustrate boththe opportunities and risks associated with implementing TRIPSexception mechanisms, and help to inform views on the negotiatingenvironment. Specific proposals for regional cooperation inimplementing the Amendment are laid out, and the authors emphasizethe importance of pursuing concrete transfer of technology measuresin support of developing country pharmaceutical manufacturing.Over-reliance on private market mechanisms for the supply ofpublic health goods leaves the international community withan unresolved collective action problem on a large scale.     

Common sense prevails in trade mark transfer dispute

The High Court of Justice has interpreted Article 17(2) of theCommunity Trade Mark Regulation, which provides that ‘[a]transfer of the whole of the undertaking shall include the transferof the Community trade mark’, in a commonsense mannerthat provides that the Community trade mark shall follow thetransferred business. The Court gave great weight to facts andcircumstances of the relevant transactions in giving effectto the transfer of the trade mark rights.     

Making drugs available at affordable prices: how universities' technology transfer offices can help developing countries

Legal context: In recent years, the prices at which medicines are soldin, and to, developing countries has become a hot politicalsubject affecting the international pharmaceutical industry.Specific legislative measures have followed the political debate,including (1) the EU Regulation 816/2006 on ‘compulsorylicensing of patents relating to the manufacture of pharmaceuticalproducts for export to countries with public health problems’and (2) the The Doha Declaration adopted by the Fourth MinisterialConference of the World Trade Organisation (WTO) in 2001, andthe subsequent Decisions by the WTO General Council to implementthe Declaration in August 2003 and to amend the TRIPs (Trade-RelatedAspects of Intellectual Property Rights) Agreement in December2005. Universities are increasingly considering whether to includeterms in their licence agreements with pharmaceutical companiesthat address this issue. Key points and practical significance: Universities may wish to consider whether it is part of theirmission to negotiate special terms in licence agreements tobenefit the developing world. Where universities decide that,in principle, they wish to include ‘humanitarian-licensing’clauses in their licence agreements, they need to find a formof words that is likely to achieve their objectives and be acceptableto pharmaceutical industry licensees. This article considerssome of the options and suggests some specimen wording.     

WTO for Trade and Development Post-Doha

The WTO Members’ negotiations under the Doha mandate onspecial and differential treatment (‘SDT’) and developmentissues have made little progress. The gap between developedcountries and developing countries in this regard seems toowide to be bridged. This gap originates from a fundamental differencein their basic stances on cross-cutting issues. In principle,without prejudice to currently available SDT under individualWTO Agreements, developing countries should be given flexibilitiesin implementing WTO rules, which may result in the rebalancingof rights and obligations of WTO Members but only when policymeasures at issue can contribute to particular developing countries’development needs and no alternative less-trade restrictivemeasures are reasonably available. After reviewing WTO Members’discussions since the adoption of the Doha Ministerial Declaration,this article suggests a ‘measure-specific ex ante approach’for a workable solution to bridging the gap between developedcountries and developing countries on SDT and development issues.     

Trade marks are 'possessions'--but applications are not (yet)

In its decision of 11 October 2005 the European Court of HumanRights (ECHR) ruled that a registered trade mark was a ‘possession’within the meaning of Article 1 of the First Protocol to theEuropean Convention on Human Rights. The ECHR failed, however,to extend this level of protection to the particular trade markapplication at issue, thereby leaving the protection of intellectualproperty rights as fundamental rights somewhat incomplete forthe time being.