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11. The Content of a WTO Climate Waiver

Author:
James Bacchus
Publication Date:
12-2018
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
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

12. Busier than Ever? A Data-Driven Assessment and Forecast of WTO Caseload

Author:
Joost Pauwelyn and Weiwei Zhangb
Publication Date:
04-2018
Content Type:
Working Paper
Institution:
Centre for Trade and Economic Integration, The Graduate Institute (IHEID)
Abstract:
Conventional wisdom has it that, in recent years, the legalized mechanism of dispute settlement before the World Trade Organization (WTO) has been “busier than ever”, “a victim of its own success”. This paper uses count data to assess the WTO’s current caseload and examines how it has evolved since the WTO’s creation in 1995. We also forecast panel and Appellate Body (AB) caseload ten years from now using different scenarios. WTO dispute settlement does, indeed, currently experience a peak in terms of the total number of cases pending before panels and the AB (as of 30 April 2018, respectively, 18 and 8). However, this is not due to an increase in new cases filed (new consultation requests markedly reduced, from a high of 50 in 1997 to “only” 17 in 2017), but rather because pending cases take much longer to conclude as they have become more complex and are often delayed for lack of human resources. In addition, fewer cases filed get formally settled (from 20% in the first five years of the WTO to almost zero after 2014), appeal rates remain very high (on average 68%), and the share of follow-up disputes over compliance (DSU Art. 21.5) has markedly increased, all three factors leading to more (pending) caseload without actually more (new) cases filed, or more panel or AB reports issued (the number of reports produced per year has actually gone down, dropping from a peak of 26 panel reports and 13 AB reports in 2000, to “only” 13 panel reports and 6 Appellate Body reports in 2017).
Topic:
Economics, International Trade and Finance, World Trade Organization, and Global Political Economy
Political Geography:
Switzerland and Global Focus

13. Environmental Provisions in Trade Agreements: Promises at the Trade and Environment Interface

Author:
Axel Berger, Clara Brandi, and Dominique Bruhn
Publication Date:
01-2017
Content Type:
Policy Brief
Institution:
German Development Institute (DIE)
Abstract:
Until recently, environmental concerns have played only a marginal role in trade policy. The rulebook of the World Trade Organization (WTO) rarely touches upon environ­men­tal concerns and mainly features an exception clause for the protection of the environment (GATT, Art. XX). How­ever, the rising number of modern preferential trade agree­ments (PTAs) covers an ever-broader array of policy areas, going far beyond the traditional reduction of tariffs by also including environmental provisions. Numerous PTAs nego­tiated on a bilateral and regional basis have compre­hen­sive “green” components. For example, many PTAs include ob­li­ga­tions not to lower environmental standards, the right to regu­late for the benefit of the environment, and the com­mit­ment to implement multilateral environmental agreements. The inclusion of environmental provisions can spark con­troversies. For some, the inclusion of environmental pro­visions offers untapped potential for actual environ­mental protection, making these agreements more compatible with environment and climate policies. However, trade critics often see these provisions as mere “fig leafs” that are included in modern PTAs in order to make them less controversial in the eyes of the public and legislators. For other critics, they represent an instrument of “green protectionism” in order to keep cheaper products from developing countries out of the market. Given the newness of the widespread inclusion of environmental provisions in PTAs and the heated debate that is raging about the nature and effects of trade policies, better data and research is needed to understand and analyse this development. Firstly, we need to improve our understanding of the specific design of these new rules and the related policy initiatives of PTA signatories. What drives the inclusion of environmental provisions in trade agreements? Which are the most innovative agreements and which the most innovative countries in terms of including environmental provisions in PTAs? Which environmental provisions are diffused more often than others into subsequent PTAs? Secondly, there is a need to understand the interplay between PTAs and other environmental or climate agree­ments. To what extent do PTAs with environmental pro­visions serve the purpose of multilateral environmental agree­ments (MEAs) or the Paris Agreement on climate change? Last but not the least: What are the implications of environmental provisions? Does the inclusion of these provisions in PTAs help the contracting parties to implement domestic environmental laws? The innovative and interactive online tool TREND analytics based on the Trade & Environment Database (TREND), which tracks almost 300 different environmental provisions in the texts of about 630 PTAs, offers new ways of going further and of undertaking research to generate fine-grained information on the interplay between trade and the environment, providing fresh insights into a number of relevant policy discussions. This Briefing Paper summarises recent research results based on TREND, along with providing new insights into these questions and policy discussions at the interface of international trade and the environment.
Topic:
Climate Change, Environment, Treaties and Agreements, World Trade Organization, and Trade
Political Geography:
Global Focus

14. The Use of Scholarship by the WTO Appellate Body

Author:
Sondre Torp Helmersen
Publication Date:
11-2016
Content Type:
Journal Article
Journal:
The Goettingen Journal of International Law
Institution:
The Goettingen Journal of International Law
Abstract:
This article examines the use of scholarship by the WTO Appellate Body. While it is not possible to say definitively how the Appellate Body views the legal status of scholarship in WTO dispute settlement, its use of scholarship will in practice determine its status. The article identifies three overall trends: the Appellate Body’s use of scholarship has declined, the Appellate Body uses scholarship mostly for matters of general international law (as opposed to WTO law), and the Appellate body has generally been careful in its use of scholarship. Possible explanations for these trends may include an increase in available precedents, the Appellate Body’s specialized role, criticism of the Appellate Body, and its members’ backgrounds.
Topic:
International Cooperation, International Law, International Trade and Finance, and World Trade Organization
Political Geography:
Global Focus

15. Losing Control? Sovereignty in the Age of Globalization

Author:
Saskia Sassen
Publication Date:
02-2015
Content Type:
Course Pack
Institution:
Columbia University Press
Abstract:
What determines the flow of labor and capital in this new global information economy? Who has the capacity to coordinate this new system, to create some measure of order? What happens to territoriality and sovereignty, two fundamental principles of the modern state? And who gains rights and who loses rights? Losing Control? examines the rise of private transnational legal codes and supranational institutions, such as the World Trade Organization and universal human rights covenants, and shows that though sovereignty remains an important feature of the international system, it is no longer confined to the nation-state. Other actors gain rights and a kind of sovereignty by setting some of the rules that used to be within the exclusive domain of states. Saskia Sassen tracks the emergence and the making of the transformations that mark our world today, among which is the partial denationalizing of national territory. Two arenas in particular stand out in the new spatial and economic order by their capacity to set their own rules: the global capital market and the series of codes and institutions that have mushroomed into an international human rights regime. As Sassen shows, these two quasi-legal realms now have the power and legitimacy to demand action and accountability from national governments, with the ironic twist that both depend upon the state to enforce their goals. From the economic policy shifts forced by the Mexico debt crisis to the recurring battles over immigration and refugees around the world, Losing Control? incisively analyzes the events that have radically altered the landscape of governance in an era of increasing globalization.
Topic:
Debt, Globalization, International Political Economy, Sovereignty, World Trade Organization, Labor Issues, and Governance
Political Geography:
Global Focus
Publication Identifier:
9780231106092
Publication Identifier Type:
ISBN

16. When CO2 Goes to Geneva: Taxing Carbon across Borders — Without Violating WTO Obligations

Author:
Maria Paniezi
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Centre for International Governance Innovation
Abstract:
Carbon taxes become relevant for international trade when they are coupled with border tax adjustment (BTA) legislation for imported products. BTAs are intended to level the playing field between domestic and foreign products, but such tax schemes, if not designed properly, can be found to violate a country’s international commitments before the World Trade Organization (WTO). This paper argues that environmentally conscious governments can impose a WTO-compatible BTA to offset domestic CO2 legislation, and that federal governments need to engage in coordinated efforts to harmonize treatment of high CO2 emitters domestically, since domestic industries will not bear the burden of environmental regulation alone.
Topic:
Climate Change, Environment, International Trade and Finance, and World Trade Organization
Political Geography:
Global Focus

17. Who Wants What? – Final Offer Arbitration in the World Trade Organization

Author:
Jaime Tijmes
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
The World Trade Organization’s (WTO) Dispute Settlement Understanding (DSU) favours negotiated settlements for disputes. However, arbitrations according to Article 22.6 of the DSU have been carried out as compulsory conventional arbitrations, even though such arbitrations do not offer strong incentives for the parties to reach a settlement. For quite some time, scholars have studied other forms of arbitration that may encourage settlements more strongly, such as final offer arbitration. Yet this form of arbitration has received rather limited attention in the academic discussion about dispute settlement under the WTO. This article explores to what extent final offer arbitration might make sense for settling WTO disputes and concludes that it would be suitable for arbitrations pursuant to Article 22.6 of the DSU, specifically for setting the level of suspension of obligations and, under certain circumstances, for deciding on so-called cross-retaliation pursuant to Article 22.3 of the DSU. Before negotiations start, parties to a dispute should agree on final offer arbitration if arbitration should be deemed necessary. Such an agreement might be expressed in a pre-emptive joint proposal on procedural aspects. Amendment of the DSU would then be unnecessary.
Topic:
International Law, International Trade and Finance, Treaties and Agreements, and World Trade Organization
Political Geography:
Europe and Global Focus

18. Michael Fakhri. Sugar and the Making of International Trade Law

Author:
Anna Chadwick
Publication Date:
07-2015
Content Type:
Journal Article
Abstract:
Michael Fakhri in his book Sugar and the Making of International Law takes inspiration from Antony Anghie, a scholar who famously disrupted prevalent conceptions of public international law. Using sugar as a ‘trace element’, Fakhri follows Anghie’s lead in retracing the historical origins of international trade law in order to challenge pervasive perceptions about this legal regime. What he is keen to demonstrate is that free trade, like state sovereignty, is not something that international institutions are merely officiating. Rather, the meaning of this concept has shifted over time as it has been applied by different institutions and actors within the international legal order to differential effect. It has been both conditioned by, and received the conditioning of, broader political, economic and social forces. Critically, it is as much the product of international institutions governing trade as it is their purpose.
Topic:
Agriculture, Imperialism, International Law, International Trade and Finance, History, World Trade Organization, and Economy
Political Geography:
Britain, Europe, and Global Focus

19. Functionalism! Functionalism! Do I Look Like Functionalism?

Author:
Laurence Boisson de Chazournes
Publication Date:
10-2015
Content Type:
Journal Article
Abstract:
In his EJIL Foreword, Jan Klabbers argues that the contemporary application of functionalism, understood as organizations being assigned functions, in order both to realize the common good and to deepen inter-state cooperation, is something of a theoretical straitjacket. However, can functionalism really be described as a ‘one-size-fits-all’ concept? It is the contention of this Comment that there are, in fact, different manifestations of the concept, including neo-functionalism and formal or informal functionalism. New realities in this field also reflect an evolved conception of functionalism, such as the increasing diversity of actors affected by, and influencing, international organizations, as well as the fact that institutions have become authorities in their own right. As a consequence, we may also observe the emergence of principles, often referred to as global administrative law principles, aimed at dealing with these new realities. The article recognizes that a functional orientation in designing the mandates of international organizations has contributed to overlaps and inefficiency. However, it argues that efforts have been made in pursuance of greater efficiency.
Topic:
International Law, International Organization, and World Trade Organization
Political Geography:
Europe and Global Focus