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.     

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.     

King Cotton, Developing Countries and the 'Peace Clause': The WTO's US Cotton Subsidies Decision

Although the World Trade Organization (WTO) is a powerful vehiclefor promoting economic development, the Uruguay Round has beenperceived by developing country WTO members as an unequal bargain.Especially with respect to agriculture, the Uruguay Round yieldedonly limited concessions. In September 2003, Doha Round effortsstalled at Cancún when developing countries coalescedto oppose a proposal that insufficiently liberalized trade inagriculture. In March 2005, the Dispute Settlement Body adopteda panel decision upholding Brazil’s legal challenge ofUS subsidies to cotton producers. The US Cotton Subsidies decisionrepresents a dramatic victory for Brazil and other developingcountry WTO members. The timing of the decision, coincidingwith ongoing Doha Round agriculture negotiations, ensures thatit will influence any outcome of the Round. This article examinesthe US Cotton Subsidies decision, describes the subsidy programsat issue in the dispute, reviews applicable WTO rules, and outlinesthe major findings of the panel and Appellate Body. The articleconcludes that Brazil’s victory in US Cotton Subsidiesmay represent a broader shift within the WTO away from a systemdominated by the US and EC toward a system that increasinglyis influenced by emerging market economies.     

Eleven Years of GATS Case Law: What Have We Learned?

The General Agreement on Trade in Services (GATS) negotiatorsfaced a significant challenge when having to craft a comprehensiveset of disciplines governing multilateral trade in services,and the result is somewhat complex. Some obligations, in particularthe most favoured-nation treatment (MFN) obligation, apply acrossthe board. Others, like the market access and national treatmentobligations, apply only in respect of service sectors of a Member'schoosing. There is overlap between the market access and nationaltreatment obligations, and the relationship between these twodisciplines and those on domestic regulation is not clearlyestablished. Additional obligations have been adhered to ona voluntary basis, in particular in the areas of telecommunicationsand financial services. In general, the interpretation and understandingof Members’ Schedules of Specific Commitments proves tobe a laborious exercise. This provides fertile ground for difficultand often sensitive interpretive issues to arise. Although Membershave thus far not made extensive use of dispute settlement proceduresto resolve them, existing World Trade Organization (WTO) decisionsalready show the reach of GATS disciplines and their potentialimpact on Members’ policies and regulations. The Gamblingcase has, in particular, sparked a debate as to what shouldbe the right balance between trade constraints and the autonomyof Members’ service regulators. This article reviews theGATS case law with a view to offering a critical assessmentof the main systemic issues that have been addressed by WTOadjudicatory bodies. These issues are, respectively, the scopeof application of the GATS, the interpretation of specific commitmentsin Members’ Schedules, market access, non-discriminatorytreatment, and general exceptions.     

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.     

The WTO Legality of the EU's GSP+ Arrangement

In EC—Tariff Preferences, the Appellate Body held thatthe WTO Enabling Clause permitted developed countries to grantbetter tariff treatment to some developing countries than toothers, subject to certain conditions. It held further thatthese conditions were not met by the EU's so-called ‘drugsarrangement’, a system of additional preferences (normallyduty free treatment) for certain countries which the EU haddetermined were in need of special tariff preferences, thanksto their involvement in combating the production and traffickingof narcotics. In response to this ruling, when the EU renewedits GSP programme in 2005, it replaced its drugs arrangementand two similar, though less generous, labour and environmentarrangements with a new arrangement popularly known as the ‘GSP+arrangement’. Under this arrangement, additional tariffpreferences (normally duty free treatment), were made availableto developing countries committing to ratify and implement alist of human rights and good governance conventions. Accordingto the EU, the GSP+ arrangement complies with the AppellateBody's interpretation of the Enabling Clause. This article arguesthat it does not. This is primarily because of the substantivecriteria chosen by the EU to select GSP+ beneficiaries, whichdo not meet the Appellate Body's criteria for differential tarifftreatment of developing countries. Second, it is because theEU's requirement that would-be beneficiaries must have appliedby a certain date, replicates the problem of the ‘closedlist’ of beneficiaries that was fatal to the earlier incarnationof the EU's GSP program. The article concludes with some suggestionsfor designing a GSP+ arrangement more likely to meet the AppellateBody's conditions than the EU's present arrangement.     

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.     

Effective Global Economic Governance by the World Trade Organization

The World Trade Organization (‘WTO’) is the principalinternational institution for the management and regulationof the process of economic globalization. Its effectivenessin fulfilling this important task, however, leaves much to bedesired. On 4 and 5 February 2005, the Faculty of Law of MaastrichtUniversity organized an international research conference entitled‘In Search of Effective Global Economic Governance: TheCase of the World Trade Organization’. This conferencebrought together academics, WTO officials, government diplomats,national trade officials, representatives of business associationsand NGOs to discuss a wide range of issues, including: possibleimprovements to and alternatives for consensus decision-makingin the WTO; issues of transparency, democratic legitimacy andthe participation of civil society in WTO decision-making; secondarylaw-making by WTO bodies; and an expanded role for the WTO Secretariat.It is important that legal and political science scholars focustheir research efforts on the reforms needed to transform theWTO into an instrument of effective global economic governance.The main objective of the conference was, therefore, to definea comprehensive agenda for research into the institutional reformof the WTO. This article is, above all, a report of the conferenceand summarizes the main arguments made by the participants.     

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.     

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.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

The Culture of the WTO: Why it Needs to Change

The WTO is an international organization with its own distinctiveculture, which is derived from the practice and experience ofthe GATT. The WTO, however, is not the old GATT. The multilateraltrading system was transformed into an international organizationin 1995, and today, the WTO also administers a host of agreementsthat contain detailed rules regulating international economicactivity. The membership of the WTO has grown to 150, the vastmajority of which are developing countries. Most importantly,the trading system, which was once bi-polar, driven by the UnitedStates and the European Union, has changed dramatically to becomemulti-polar, with the large emerging economies, such as China,India and Brazil, becoming major economic powers in their ownright. The WTO needs major surgery in order to respond effectivelyto the new political realities in the international economicsystem. The current impasse in the Doha Round is in large partdue to the great transformation in geopolitical power relationshipstaking place in the world today. If the Round fails, it willnot be the end of the WTO. On the contrary, it might providea useful ‘time out’ for the multilateral systemto find its new stride. A related problem is that the mandateof the WTO is no longer clear. This article suggests that WTOMembers work together to define the new purpose and mandateof the WTO to make it relevant to governments, companies andpeople in the 21st century. Institutional reform of the WTOis needed to provide it with the architecture and decision makingmachinery that will allow it to become a vibrant, responsiveand accountable organization.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

Thick, Thin and Thinner Patriotisms: Is This All There Is?

The ‘reinvention’ of nationhood in theory and thereform of British naturalization rules in praxis have been unableto address satisfactorily the issue of unjust exclusion andto make naturalization law and citizenship more compatible withdemocratic ideals. This has much to do with the fact that thediscourse of new patriotism and the reconfiguration of nationalcitizenship have inbuilt limits. In examining the ‘new’discourse of patriotism in its various shades, I argue thatit is inconsistent and unpersuasive. Neither the rehabilitationof civic nationalism under ‘republican patriotism’,nor ‘constitutional patriotism’, nor ‘rootedpatriotism’ succeed in transforming the nationality modelof citizenship in order to render it more compatible with contemporarydevelopments and with cultural pluralism. Similarly, the threemodels of citizenship developed by the literature, namely, postnational,transnational and multicultural citizenship remain rooted withinthe civic nationalist trajectory. Instead of arguing for theliberalization of naturalization requirements and the ensuingpluralization of citizenship, I put forward an argument as tohow the nationality model of citizenship might be transcendedby developing a model of civic registration. By contrastingthis model with the Labour Government’s reforms in thefields of naturalization and citizenship, I argue that the Nationality,Immigration and Asylum Act 2002 places too much emphasis onsocial cohesion, thereby overlooking that a sense of belongingto community develops with inclusion in society and politicsrather than as a result of citizenship ceremonies and languageproficiency tests.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

Planes, Trains and Automobiles: The Impact of the WTO 'Court' on Canada in its First Ten Years

Observers interested in the nature and scope of judicial policy-makingtraditionally focused on the extent to which domestic courtsshaped national policy arrangements. With the emergence of morerobust international tribunals, however, many are raising questionsabout the degree to which foreign judges are influencing domesticlegal regimes. This project addresses one corner of this debateby analysing the impact of the WTO ‘court’ on Canada.The legal challenges have provoked considerable controversyas the country has lost, either in whole or in part, each casebrought against it. Moreover, there has been widespread publicconcern about these disputes as many have involved significantsocial issues. Yet despite the country’s successive defeatsbefore the WTO ‘court’, the policy impact of thetrade tribunal has been relatively modest. Contrary to suggestions,the WTO dispute settlement mechanism has not superimposed someform of neo-liberal order on the Canadian state via its judicialdecision-making process.     

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.     

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’.     

The Vessel Hull Design Protection Act of 1998: is it still afloat?

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’or ‘Act’) is a unique form of industrial designprotection under US law, part of the Digital Millennium CopyrightAct 1998. Congress provided this sui generis form of protectionin response to the Supreme Court's decision in Bonito Boatsv Thunder Craft Boats, Inc. This statute has been underutilizeddue to the difficulty in proving infringement, as unintendedconsequences were caused by the way ‘hull’ was originallydefined under the Act. A bill is pending in Congress that addresseshow a ‘hull’ is defined, eliminating any inclusionof ‘deck’ features, when passed, registrants shouldbe able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry hasbeen plagued by low-cost boat makers who think nothing of takinga competitor's boat hull design, and using it as a ‘plug’to make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as ‘splashing’a hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringement—thatis likely to change soon. Practical significance. The Act includes the right to excludeothers from making, having made, importing, offering for sale,or using in any trade, any boat hull embodying the protectedhull design. The Act provides compensatory recovery for damagesas well as injunctive relief. The newly revised Act has thepotential to provide a low-cost and effective form of intellectualproperty protection for recreational boat manufacturers whobuild hulls from moulded fibreglass or similar materials.     

Foe or Friend of GATT Article XXIV: Diversity in Trade Remedy Rules

While the WTO Member countries continue to increase their FTAarrangements with divergent frameworks, they have begun to adoptmodified WTO trade remedy systems in FTAs. Although the contentand degree of these modified systems may not be significantyet, they still set very important precedents, or ‘seeds’,for ‘rule diversification’ in the world tradingsystem. Such modification typically aims to further liberalizemutual trade between FTA parties and thereby contribute to afreer world trading system. However, such rule diversificationappears to be inconsistent with the mandate of Article XXIVof GATT by worsening economically inferior trade diversion.The reinterpretation of the legal obligations in Article XXIVcommensurate with economically more reasonable structures impliesthat trade remedy rules in FTAs should be applied on a non-discriminatorybasis. Moreover, an FTA safeguard measure must precede a WTOsafeguard measure to ensure optimal competitive conditions amongtrading partners. In sum, the right channel for improving thecurrent WTO trade remedy systems is not the FTA forums but theWTO negotiation.