Explaining energy disputes at the World Trade Organization

The international trade regime has seen an explosion of challenges to government support for renewable energy in recent years, yet fossil fuel subsidies, which dwarf renewable energy subsidies, have remained unchallenged. Existing explanations for this puzzling discrepancy have focused on four rationales: major fossil fuel exporters have not historically been members of the General Agreement on Tariffs and Trade/World Trade Organization (WTO); WTO subsidies rules are inadequate to deal with the specifics of the fossil fuel trade; nations have developed separate institutions to govern energy; and all states have fossil fuel subsidies, so a challenge to one country’s subsidies will prompt a reciprocal challenge. This article makes two contributions. First, it uses a survey of existing renewable energy trade disputes to critique the existing explanations. Most importantly, the article shows that the threat of reciprocal litigation exists in the renewable energy sector, and that WTO subsidies rules are rarely used to challenge renewable energy subsidies. Hence, neither the threat of reciprocal litigation nor the relative ease of applying WTO subsidies rules explains the discrepancy in the number of disputes. Second, the article hypothesizes that the economic diversification of energy-producing countries is correlated with and may drive whether energy-producing countries face WTO challenges to their energy support policies. Most major fossil fuel producers lack significant non-fossil fuel exports that could be restricted in order to induce them to reform their fossil fuel policies, the usual mechanism for enforcing a WTO judgment. States may also be more likely to challenge new, rather than long-standing, trade restrictions. This suggests that trade challenges will arise more frequently where innovation leads to competition and a demand for new trade restrictions (as in renewable energy), as opposed to in mature sectors of the economy (i.e., the fossil fuel industry). Economic diversification, in turn, is a good predictor of innovation.     

Seizing the opportunity: tackling fossil fuel subsidies under the UNFCCC

Analyses from international and nongovernmental organizations have pointed to the negative environmental, economic and social implications of the sizable subsidies handed out by governments for the production and consumption of fossil fuels. Given their relevance for achieving climate policy objectives, it is perhaps surprising that the climate regime established by the United Nations Framework Convention on Climate Change (UNFCCC) does not address fossil fuel subsidies. This article discusses the possible role of the UNFCCC in tackling fossil fuel subsidies. It suggests that the UNFCCC could enhance the transparency around fossil fuel subsidies and put in place incentives for countries to undertake subsidy reform. However, the possibilites under the UNFCCC will be limited by political barriers to subsidy reform at the national level and will need to be carried out in coordination with other international institutions active in the field.     

The devil lies in the definition: competing approaches to fossil fuel subsidies at the IMF and the OECD

Fossil fuel subsidy reform has in recent years been addressed by international economic organizations including the International Monetary Fund (IMF) and the Organisation for Economic Co-operation and Development (OECD). The two organizations have differed significantly in how they define fossil fuel subsidies. The IMF’s definition constitutes a radical break with previous definitions by including environmental externalities, while the OECD’s is more conventional. The article explores the factors that explain why these international economic organizations have approached fossil fuel subsidies so differently. The exact definition of fossil fuel subsidies is contested. Furthermore, fossil fuels subsidies can be framed in ways that emphasize, respectively, their macroeconomic, fiscal, environmental, and distributive consequences. The article finds that institutional interaction lifted OECD involvement in fossil fuel subsidies to a new level, whereas the impetus to address fossil fuel subsidies within the IMF came largely from the IMF staff. In both cases, the organization’s bureaucracy constituted the most important factor shaping how the organizations addressed such subsidies and hence the main reason why they differ in how they approach fossil fuel subsidies.     

Removing fuel subsidies: How can international organizations support national policy reforms?

This article investigates how international organizations can support fuel subsidy reform. Departing from earlier studies, we focus on the ability of international organizations to assist national governments directly in the enactment and implementation of national reforms. While international organizations lack the capacity to directly enforce policy or force countries to abolish subsidies, they can increase the cost of reform reversal by governments that have a preference for reform but worry about the credibility and durability of their reforms. Moreover, international organizations can support learning from peers. In practice, governments interested in subsidy reform can announce a public commitment and submit progress reports to peer review by other countries under the auspices of an international organization. We characterize the institutional design of international organizations for success, discuss the role of the civil society in the process, and offer short illustrations from recent efforts by international organizations to promote fuel subsidy reform.     

世界贸易组织补贴规则研究

世界贸易组织法律体系中关于补贴问题主要规定在三个法律文件之中,即《补贴与反补贴措施协议》(以下简称《补贴协议》)、《农业协议》和《服务贸易总协定》。《补贴协议》只处理影响货物贸易的补贴,《农业协议》对农产品的补贴在《补贴协议》的大框架内有一些特殊规定,《服务贸易总协定》则另外规定了关于服务贸易的补贴。由于发达国家与发展中国家的经济实力的巨大悬殊以及它们对农业补贴的不同政策,从而导致了在货物贸易的补贴规则方面,两类国家之间存在着尖锐的利益不平衡,发展中国家必须为实现其与发达国家实质上的平等而继续奋斗。     

公平贸易中的补贴、反补贴与竞争

规范补贴和反补贴问题的反补贴法被视为了公平贸易政策在国际贸易领域的一大体现。通过对补贴、反补贴与竞争的法律分析,剖析反补贴法与竞争法的区别与联系,指出了反补贴法在维护公平竞争中存在的法律价值,提出作为反补贴法理论基础的公平贸易政策之价值思考。     

No iceberg in sight: on the absence of WTO disputes challenging fossil fuel subsidies

The empirical record of dispute settlement cases under World Trade Organization (WTO) rules on energy subsidies consists only of cases against renewable energy (RE) subsidies, whereas WTO members have not challenged others’ much larger and environmentally harmful fossil fuel subsidies. Yet, the WTO agreement on subsidies and countervailing measures would at first sight seem to create possibilities to forestall environmentally harmful subsidization. In this article, we assess possible explanations for the skewed distribution of energy subsidies dispute settlement complaints at the WTO. We argue that differences in legally relevant characteristics of fossil fuel subsidies, on the one hand, and RE subsidies, on the other hand, largely explain this observation. In the case of RE subsidies, in particular, the disputes filed to date have targeted a much narrower set of measures than the whole range of RE subsidies currently in place, namely those incorporating a local content requirement component. Although this finding is not new, we have probed into this question more systematically, both by widening the scope of the empirical analysis from actual to potential WTO disputes on energy-related policies the European Union and the USA might have initiated, and by systematically assessing the plausibility of alternative explanations.     

The role of the G20 in governing the climate change regime

A wide array of institutions governing climate change has proliferated over the past years, influencing the rule-makings of the regime. One of them is the G20. When G20 leaders around the world convened in London to restore global economies, they stressed the importance of a ‘resilient, sustainable, and green recovery’ and reaffirmed their commitments to address climate change. This was followed by their agreement on phasing out inefficient fossil fuel energy subsidies over the medium term in Pittsburgh. The ‘coexistence of narrow regimes in the same issue-area’ could be described as ‘regime complexes’, which enable countries to adapt more readily, particularly when adaptation requires complex changes in norms and behavior. Given that responses to climate change would require changes in the domestic politics of different countries at different levels, loosely integrated institutions of regime complexes could be more advantageous for countries to adapt and in engaging with developing countries. This paper demonstrates that the G20’s highly informal institutional setup as well as its flexible cooperation tools could enable its members to customize their policies and better engage with third-party countries. In addition, the G20 group could collectively influence other key countries to reach an agreement on some of the key climate change–related issues, thereby facilitating the United Nations process of climate change.     

The EU Illegal,Unreported, and Unregulated Fishing Regulation Based on Trade and Market-Related Measures: Unilateralism or a Model Law?

The problem of illegal, unreported, and unregulated fishing is well recognized, yet conventional monitoring, control, and surveillance mechanisms administered by coastal and flag states have so far achieved limited success. The EU IUU Regulation is one of the most recent instances of trade and marketplace measures being implemented at the domestic rule level to block out IUU-caught fish. It aims at preventing any harvesting, processing, and re-exporting states from the circumvention of internationally agreed fisheries management goals. The immediate question for international law is whether unilaterally created trade-restrictive measures would affect the development of a truly global strategy to combat IUU fishing as a global activity. This article responds to the inquiry by exploring the potential and legitimacy limitations for domestic trade regulation to be effective and fairly nondiscriminatory. It draws on the regime theory to provide further insights into the ways of reconciling and synergizing disparate fisheries and trade management systems.     

论我国农业补贴法律制度的构建

农业补贴法律制度是世界各国经济发展进入工业化中期发展阶段后所普遍实施的工业反哺农业、支持农业发展的法律制度,在各国农业法律体系中占有重要的地位.我国农业法应专列"农业补贴"一章,规定农业直接支付补贴、农业生产资料投入补贴、农业环境保护补贴、不发达地区农业开发补贴等制度,同时规定农业补贴相关主体的责任追究机制.     

清洁能源补贴问题研究

清洁能源补贴是政府在追求环境与贸易平衡中的积极行为,体现了一定的发展权思想。世界上多数国家都在法律和政策机制上对清洁能源产业进行补贴,并效果显著。基于贸易博弈的原因,清洁能源产业也正成为反补贴之诉的"重灾区",中国尤为明显。作为应对之策,中国除了要在推进WTO清洁能源补贴立法改革的问题上建言献策之外,还要完善自身法律并采用更为科学的补贴方式。     

Data breach notification law in the EU and Australia – Where to now?

Mandatory data breach notification laws have been a significant legislative reform in response to unauthorized disclosures of personal information by public and private sector organizations. These laws originated in the state-based legislatures of the United States during the last decade and have subsequently garnered worldwide legislative interest. We contend that there are conceptual and practical concerns regarding mandatory data breach notification laws which limit the scope of their applicability, particularly in relation to existing information privacy law regimes. We outline these concerns here, in the light of recent European Union and Australian legal developments in this area.     

捕捞渔船安全国际海事立法之观察

国际海事组织在过去几十年一直努力推动捕捞渔船安全国际立法工作。通过对主要的涉渔海事公约以及港口国监督措施,特别是《1993年捕捞渔船安全议定书》和《捕捞渔船船员培训、发证和值班标准国际公约》的探讨,建议中国渔业主管部门、渔业界及行业组织重视国际渔业法研究和普及工作,积极行使国际法权利和履行国际法义务,参照相关海事公约及时修改国内海事安全和渔业法规,依法建立全国统一的渔船和渔船船员登记系统,增强对捕捞渔船现代化和渔船船员培训事业的扶持力度,促进中国海洋渔业的稳健发展。     

The Proposed 100 by 50’ Act: Protecting Collective Bargaining of Workers in a “Just Transition” to a Clean-Energy Future

There is a longstanding misconception that any overlap between environmental policy and labor rights results in conflict. With the intensifying threat of climate change and the decline of fossil fuel development, international labor and climate groups have collaborated to develop a framework for a just transition to sustainable development that emphasizes social dialog between stakeholders. An increasing number of nations are guided by this framework as each incorporates its own transition model. The United States, however, remains on the sidelines. This article proposes that the U.S. enact recently proposed legislation to transform its energy sector, while also protecting its workers and the environment.     

Biofuel,Energy Diversification,and NAFTA: A Proposition for the Future of the North American Biofuels Industry

This article demonstrates how the United States can use the free-trade legal structure to diversify the nation's energy portfolio by importing jatropha plants from southern Mexico for use as biofuel. The North American Free Trade Agreement has created a free trade zone among Canada, Mexico, and the United States, so jatropha imports from Mexico are not subject to tariff. This article contends that the United States and Mexico can change two of their legal devices, PROCAMPO and ethanol subsidies for U.S. farmers, to facilitate jatropha trade. Thus, the United States can diversify its energy market by using an abundant and easily accessible resource.     

人民币汇率争端的法律分析

人民币汇率问题成为近年来国际社会关注焦点,特别是美国参众两院先后通过关于汇率改革法案,不断质疑人民币汇率政策。汇率主权是国家货币主权的应有之义,主权国家有权决定并且改变本国的货币价值,不受其他国家干涉。一些国家对人民币汇率问题的指控,如汇率操纵、汇率偏差、或者是构成"出口补贴",都可以从法理上看到漏洞。根据国际货币基金组织和世界贸易组织的相关规则不足以判定人民币汇率违反国际义务。中国政府应该在坚持货币主权原则的基础上,通过灵活的法律手段解决人民币汇率争端,促进人民币汇率市场化改革,寻求国际合作以推进人民币国际化进程。     

知识产权平行进口法律规制研究

在经济全球化和国际贸易不平衡的大背景下,知识产权平行进口的问题日益增多,成为知识产权保护和国际贸易冲突的一个热门话题。随着我国综合国力的增强和对外贸易的不断发展,对外贸易中关于知识产权平行进口问题的案件日趋突出。因此,我们应当充分了解世界主要国家对平行进口的规定和态度,探求平行进口法律规制的发展趋势,为我国制定相关立法提供建议。     

论国际贸易领域中的“私法行为公法化”

2017年夏天以来美国在中美贸易之间频频制造摩擦并对中国的相关立法和企业行为发起挑战,其表象是美国政府作出的决定,但实际上背后私人企业是始作俑者;它们所涉及的问题实质是私法行为公法化现象及其理论。历史地看,"私法行为公法化"自近代国际贸易出现之日起,就已经存在,只不过美国政府将其表达的更为直接而已。私法行为公法化意指私人将蕴含营利性的动机、目的等意志的行为通过特定形式变成国家意志的行为或过程,它影响或干预国际贸易,以实现其追求自己利益最大化之目标;通过它,私人部门对国际贸易法律制度的形成和发展产生重要影响,并体现为国际贸易的国内与国际法律规范,进而对后进的国家之国际贸易产生制约。应对中美之间的贸易摩擦不能仅限于政府之间,企业等私人部门的参与也至为重要。     

SCM协议中财税措施地区专向性特别规定初探——兼评美国对华反补贴调查的相关案例及我国的对策

SCM协议地区专向性标准条款中的财税措施特别规定具有经济合理性,并符合WTO的政治考虑。该特别规定认定“有资格”的地方各级政府所采取的“确定或者改变”在其辖区内“普遍适用”税率的补贴措施不具有SCM协议意义上的专向性。我国应充分利用该特别规定提供的政策空间,深化税制改革,协调地方政府地区补贴与SCM协议之间的关系。     

The traffic in garbage and hazardous wastes: an overview

The traffic in garbage and hazardous wastes is a huge illicit transnational business that involves a wide array of criminals, including private entities, corrupt public officials, and organized crime groups. The traffic in CFCs and radioactive materials and the chemical by-products of illicit crop cultivation and production are related problems with significant negative environmental and social consequences. Inelastic demand, price differentials among industrialized and developing nations, corruption, incongruent international regulations, a lack of political will, and the emergence of waste brokers are all factors that drive the illegal trade and inhibit law enforcement. While regulatory and criminal justice efforts have been mostly ineffective, technological innovations that reduce waste and the costs of safe disposal may limit opportunities for waste traffickers. The right mix of subsidies and taxation as well as monitoring and compliance at the local level could make legal disposal more attractive, and thus further inhibit criminal opportunities.