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Begin New Search Topic International Trade and Finance Author James Bacchus

1. The Black Hole of National Security: Striking the Right Balance for the National Security Exception in International Trade

Author:
James Bacchus
Publication Date:
11-2022
Content Type:
Policy Brief
Institution:
The Cato Institute
Abstract:
Article XXI of the General Agreement on Tariffs and Trade (GATT) reserves for members of the World Trade Organization (WTO) the legal authority to restrict trade in goods to protect members’ “essential” security interests. Similar exceptions to WTO trade obligations exist in other WTO agreements. For more than seven decades, WTO members exercised self‐​restraint in invoking these exceptions, doing so only for narrow purposes and in truly exceptional circumstances to avoid pushing the boundaries of the law too far and thereby upending the delicate balance between members’ legitimate pursuit of their security interests and their obligations to reduce barriers to trade. Yet, trade restrictions justified on national security grounds have proliferated in recent years and are increasingly subject to litigation in WTO dispute settlement. As a result, the national security provisions contained within the WTO agreements, as well as fundamental questions about the nexus between trade and national security, are set to be tested and clarified by WTO jurists—a less than ideal outcome that could lead to the further undermining of WTO dispute settlement and the rules‐​based international trading system more broadly. This paper explains the origins of the national security exceptions in the GATT and the WTO agreements and the history of their invocation, summarizes recent litigation that has clarified these exceptions, discusses current developments and upcoming litigation that could prove pivotal to our understanding of the trade‐​security nexus and the future of the world trading system, and offers some concluding thoughts on the options available to WTO members for striking a balance between trade liberalization and the defense of national security.
Topic:
International Trade and Finance, National Security, World Trade Organization, and Tariffs
Political Geography:
Global Focus

2. TRIPS-Past to TRIPS-Plus: Upholding the Balance between Exclusivity and Access

Author:
James Bacchus
Publication Date:
06-2021
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation (CIGI)
Abstract:
A deadly global pandemic and other unique circumstances have combined to present the World Trade Organization (WTO) with an opportunity to modernize its rules for the trade-related aspects of intellectual property (IP) rights. The best place to begin is with a full realization of the negotiated balance between exclusivity and access in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). There is the need to turn the “TRIPS-past” of WTO IP rules agreed in 1995 into the “TRIPS-plus” of improved rules more fit to purpose for the twenty-first century. New rules are needed to help spark new innovations of all kinds and the rapid spread of those innovations worldwide, including rules relating to intangible assets and especially to digital expressions of IP. Continuing questions over the extent to which the TRIPS Agreement protects the exclusivity of IP rights in COVID-19 vaccines underscore how much uncertainty remains about where the line of this balance is in this multilateral trade agreement, and also how much doubt still exists about whether that line is in the right place.
Topic:
International Cooperation, International Trade and Finance, Intellectual Property/Copyright, Multilateralism, Pandemic, COVID-19, and WTO
Political Geography:
Global Focus

3. The Digital Decide: How to Agree on WTO Rules for Digital Trade

Author:
James Bacchus
Publication Date:
08-2021
Content Type:
Special Report
Institution:
Centre for International Governance Innovation (CIGI)
Abstract:
After more than 20 years of unsuccessful negotiations, WTO member countries may be able to agree on global digital trade rules if they look to the new Digital Economy Partnership Agreement (DEPA) among Chile, New Zealand and Singapore as a model. As the first “digital only” trade agreement, the DEPA offers a modular approach that allows members to pick and choose which modules work best for them today while enabling them to adopt more legal commitments on digital trade in the future. As cross-border trade becomes increasingly digital, especially during the COVID-19 pandemic, ensuring the free movement of goods and services is essential to the global economy.
Topic:
International Cooperation, International Trade and Finance, World Trade Organization, and Digital Economy
Political Geography:
Global Focus

4. What Is a Climate Response Measure? Breaking the Trade Taboo in Confronting Climate Change

Author:
James Bacchus
Publication Date:
07-2019
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation (CIGI)
Abstract:
Trade has become a taboo topic in climate negotiations on the implementation of the Paris climate agreement. This must change. The nexus between trade and climate change must be addressed in the climate regime. In particular, a definition is needed that will clarify the meaning of a climate “response measure.” Without a definition provided by climate negotiators, the task of defining which national climate measures are permissible and which are not when they restrict trade while pursuing climate mitigation and adaptation will be left to the judges of the World Trade Organization. To avoid a collision between the climate and trade regimes that will potentially be harmful to both, the ongoing deliberation on response measures in the climate regime must be reframed by ending the climate taboo on trade.
Topic:
Climate Change, Environment, International Trade and Finance, and World Trade Organization
Political Geography:
Global Focus

5. The Content of a WTO Climate Waiver

Author:
James Bacchus
Publication Date:
12-2018
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation (CIGI)
Abstract:
Neither the trade regime nor the climate regime has so far displayed any willingness to confront the coming clash between climate ambitions and trade rules. To minimize the economic and political risks of such a collision, the members of the World Trade Organization (WTO) should adopt a WTO climate waiver. To further carbon pricing and to facilitate the necessary green transition in the global economy, the core of a WTO climate waiver should be a waiver from the applicable trade rules for national measures that: discriminate on the basis of carbon and other greenhouse gases used or emitted in making a product; fit the definition of a climate response measure as defined by the United Nations Framework Convention on Climate Change; and do not discriminate in a manner that constitutes a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. A WTO climate waiver should also include support for trade restrictions by carbon markets and climate clubs, trade disciplines on fossil fuel subsidies, and green subsidies that support innovative outcomes rather than particular technologies. Along with a climate waiver, WTO members should also confirm that carbon taxes qualify as border tax adjustments under trade rules. The adoption of a WTO climate waiver is a central and critical part of the overall reimagining of international trade law that is needed to fulfill the stated WTO goal of engaging in trade and other economic endeavours consistently with the objectives of sustainable development.
Topic:
Climate Change, International Trade and Finance, World Trade Organization, and Green Technology
Political Geography:
Global Focus