The WTO dispute settlement system has come under severe criticism in recent times, which does not seem, for now at least, to affect its relevance. In terms of output, 2017 was yet another bumper year. We review eight cases that constitute the ‘last word’ of the dispute settlement system: we review exhaustively all Appellate Body reports, as well as all un-appealed panel reports.

Using bilateral trade data on WTO disputes from 1995 to 2010 within the framework of multilateral trade, this paper empirically investigates whether legally winning a WTO dispute leads to actual trade gains. This study helps to illuminate the efficacy of the WTO dispute settlement system and to understand the role of the system as an institutional device for promoting multilateral trade liberalization. Assessing differential effects of the WTO dispute settlement rulings and the legal status of participants, this paper examines how trade gains are created and distributed among WTO members. Our empirical findings suggest that winning a legal dispute contributes to multilateral trade liberalization, not merely by rectifying trade problems for prevailing complainants but more so by providing better market access for all WTO members. This result reaffirms that the WTO dispute settlement system fulfills its purpose as a regulatory instrument for promoting multilateralism and market competition.

Preferential trade agreements are an important feature of the global trade system. Several questions, ranging from the rationale for preferential arrangements to their impact on members, non-members and the broader multilateral trade system, are at the forefront of academic and policy debates in trade policy. This paper presents a new database that offers a detailed assessment of the content of preferential arrangements, examining the coverage and legal enforceability of provisions regulating a large set of policy areas. The database provides information on 279 agreements signed by 189 countries between 1958 and 2015. The analysis of the data confirms one of the key insights in the literature: preferential trade agreements are becoming deeper over time. A growing number of these treaties regulate an extended set of policies, frequently with legally enforceable provisions, in areas under the current World Trade Organization mandate and in areas outside the current World Trade Organization mandate, especially competition policy, investment, movements of capital, and intellectual property rights protection. Accounting for the changing scope of preferential trade agreements is essential to gain a more complete and accurate understanding of where the global trading system is going and how its governance can be improved.

For almost a decade, executives, scholars, and trade diplomats have argued that filtering, censorship, localization requirements, and domestic regulations are distorting the cross-border information flows that underpin the internet. Herein I use process tracing to examine the state and implications of digital protectionism. I make five points: First, I note that digital protectionism differs from protectionism of goods and other services. Information is intangible, highly tradable, and some information is a public good. Secondly, I argue that it will not be easy to set international rules to limit digital protectionism without shared norms and definitions. Thirdly, the US, EU, and Canada have labeled other countries policies’ protectionist, yet their arguments and actions sometimes appear hypocritical. Fourth, I discuss the challenge of Chinese failure to follow key internet governance norms. China allegedly has used a wide range of cyber strategies, including distributed denial of service (DDoS) attacks (bombarding a web site with service requests) to censor information flows and impede online market access beyond its borders. WTO members have yet to discuss this issue and the threat it poses to trade norms and rules. Finally, I note that digital protectionism may be self-defeating. I then draw conclusions and make policy recommendations.

The digitalization of trade is a reality, and yet the regulation of the world trading system as embedded in the World Trade Organization (WTO) only tangentially, if at all, touches upon this issue. True, digitalization of the economy, the fourth industrial revolution as it is colloquially referred to, is a recent phenomenon, and to some extent post-dates the conclusion of the Uruguay round agreements (1994). True also, however, is the reality that the world trading system has shown a remarkable inability to adjust to modern business realities in its multilateral rule architecture. To the extent these transformations are being reflected in new rules, they are being introduced in regional or bilateral frameworks, albeit in an incomplete fashion. It is also the case that the world is witnessing several different regimes around data and information economy developing in the world today – most notably in the US, Europe, and China. As always, part of the reason that international frameworks have not been born stems from the fact that international rules rarely occur before domestic regulatory and legal regimes are well developed.

International trade law, organized around the goods-services dichotomy, is about to meet the Internet of Things (IoT). How will rules written for the world of 1994 fare in a world of talking teapots and connected cars? IoT will especially raise governmental concerns with respect to privacy, security, and standards. Indeed, governments have already begun taking adverse measures against foreign IoT suppliers based not on the hardware, but on the digital features of the products. This paper argues that IoT devices comprise both goods and services, therefore calling into application multiple WTO disciplines, with the specific agreements that are applicable dependent on the particular governmental measure subject to challenge.

The last decade has seen a proliferation of measures requiring data to be stored within national borders. Such restrictions, known as ‘data localization measures’, disrupt digital trade and run counter to the borderless reality of the internet. But the effectiveness of existing WTO rules to adequately discipline data localization measures remains inconclusive. In the absence of meaningful progress at the multilateral level, FTA negotiations are developing new models to address such barriers. This article compares how data localization measures would be disciplined under the General Agreement on Trade in Services (GATS) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) framework. It argues that the CPTPP represents a significant advance on the GATS and strikes an appropriate balance between facilitating businesses’ growing need to transfer and store data across national borders while preserving governments’ right to regulate in the public interest.

Article 6 of the SPS Agreement presents a series of interlinked obligations for importing and exporting countries of diseased agricultural products. The Russia–Pigs dispute raises the question of when an importing country is justified in imposing a ban on products from exporting countries unaffected by the disease, on the basis of the fact that the country is part of the same customs union as another country inflicted with the disease. This Article contends that four distinct classes of cross-border and cross-product externalities ought to play an important role when assessing this question in the future. It discusses the possible roles to be played by bilateral, sequential, pass-through, and supply chain externalities in propagating the transmission of agricultural disease across borders through trade.

India has actively tried to shape the WTO agricultural negotiations by submitting detailed proposals, building coalitions, and even taking hard stands (veto) at critical junctures. However, this aggressive posturing presents a sharp contrast with India's domestic agricultural space, where the situation highlights policy neglect, manifesting in agrarian distress and farmer suicides. This paper analyzes contradictions between India's internationally espoused negotiating positions and its domestic policy goals. It argues that India's core focus has been to preserve status quo in the domestic food markets, driven by the political need to provide food-based consumption subsidies and manage an assured price and supply protection to its vulnerable consumers. As a result, India's interests are divergent from most of its developing country coalition partners in the G-20 as well as the G-33 groups. Our discussion has significant implications for both the domestic policy, as well as the sustainability of India's strategy in global agricultural trade negotiations.

Interaction between regional trade agreements (RTAs) and the multilateral trading system established by the World Trade Organization (WTO) is an issue of significance but nevertheless remains unsettled. This article aims to explore the influence RTAs have generated had on the WTO system, with particular focus on the approach adopted by the adjudicators when dealing with irreconcilable RTA–WTO conflicts. During the development of 20 years’ jurisprudence, WTO adjudicators offered responses to a number of critical questions. On the one hand, direct endorsement of RTA provisions with the effect of prevailing over the counterpart WTO rules appears to be very difficult, either through legal interpretation or application. On the other hand, unlike often being argued, a close review of WTO case law does not reveal a biased adjudicatory approach against regionalism, as compared to other sources of public international law. When dealing with RTA-related matters, the Appellate Body has been advocating an all-encompassing approach featured by the emphasis on the common intention during the interpretative exercise and the promotion for the WTO built-in mechanisms for valid modification. Such an approach is, to a certain extent, misleading in the RTA –WTO context and has led to certain ill-founded adjudicatory choice.

The value of preferential market access schemes has fallen sharply. Drawing on a relaxation announcement of July 2016 simplifying origin requirements for access to the EU that should help improve market access, thereby contributing to alleviate the refugee crisis in Jordan, this paper argues that a simplification of origin requirements is a straightforward way to enhance preferential market access. Yet, the EU decision limits the beneficiaries who must be located in designated special economic zones, which limits preferential market access. The paper compares the performance of Jordanian exports to the EU and the US under their respective FTAs. It shows that Jordanian exports to the US have grown more rapidly than exports to the EU over the last 15 years. The study documents lower utilisation of preferences in the EU than in the US, especially in Textiles and Apparel (T&A) in spite of non-negligible preferences. Three contributing factors are identified: (i) higher adjusted preferences for apparel in the US than in the EU; (ii) greater competition from other suppliers (mostly from LDCs) in the EU market than in the US market; (iii) simpler origin requirements in the case of the Jordan–US FTA. Comparative evidence from the two FTAs and econometric estimates suggest that this should help restore market access for Jordanian exports to the EU. These estimates provide additional evidence that origin requirements suppress market access. Other pathways to simplify origin requirements are offered in the conclusion.

Without a properly functioning dispute process, the obligations in a trade agreement may not be worth much. As part of the NAFTA renegotiation, the NAFTA parties should try to fix certain flaws in the NAFTA Chapter 20 dispute settlement process that emerged a few years after NAFTA came into force. Chapter 20 was used regularly in its early years, but usage dropped considerably after panel selection was blocked in a case involving US restrictions on Mexican sugar. In this paper, we examine recent innovations on panel selection in the TPP, CETA, and JEEPA dispute provisions, and draw from those to develop principles that can guide revisions to the NAFTA Chapter 20 panel selection process.

We examine the impact of the World Trade Organization (WTO) Government Procurement Agreement (GPA) on government procurement practices in the European Union (EU). We analyse empirically whether the WTO GPA is effective in promoting non-discriminatory, open, transparent, competitive, and cost-effective government procurement. To study this question, we use a unique data set recently released by the EU, covering more than three million tenders conducted in the European Economic Area, Switzerland, and Macedonia during the years 2006–2016. We find that the WTO GPA promotes competition by increasing the probability of awarding a contract to a foreign firm. In addition, the WTO GPA significantly lowers corruption risk by decreasing the number of contracts with single bidders, and by decreasing total number of wins by a single firm. Finally, the WTO GPA fosters cost-effective public procurement by lowering the probability that the procurement price is higher than estimated cost.

This paper examines two disputes brought by the United States and New Zealand in response to a series of import sanctions for agricultural products imposed by the Indonesian government to promote food self-sufficiency. We document the heterogeneous effect the sanctioning measures had on Indonesia's partners. We argue that Indonesia's import licensing regimes acted as a high, sometimes prohibitive, fixed cost of exporting. Frequent changes of regulation provided additional challenges and increased the costs of exporting. These properties determined the differential impacts of Indonesia's measures where some sustained significant market losses while other large exporters, in particular Australia, following a short decline strengthened their market position and export levels.

As global data flows and digital technologies transform international trade, governments and regulators have to determine how to benefit from these developments while maintaining the integrity of their domestic regulations. Currently, governments are increasingly restricting global data flows and requiring data localization, undermining the economic benefits of digital trade. To address this trend will require a system of digital trade governance that has two key elements. One element is new digital trade rules, some of which exist in the WTO and others which are being developed in free trade agreements. The other is international regulatory cooperation to develop standards and mutual recognition agreements in areas such as privacy and consumer protection that gives domestic regulators confidence that allowing data to leave their jurisdiction will not undermine achievement of domestic regulatory goals. In the absence of such regulatory cooperation, governments are likely to continue to restrict data flows, relying on the exceptions provisions to their digital trade commitments.

This paper analyzes the dispute Indonesia – Measures Concerning the Importation of Chicken Meat and Chicken Products from a legal-economic perspective. We evaluate alternative explanations for the motive behind Indonesia's import restrictions and conclude that they can be linked to protectionist political-economic motives and are most likely due to a self-sufficiency objective and the legal requirements attached to it. Economically, the import restrictions on chicken and other food products have led to substantial price volatility, and they impose costs on Indonesian consumers and small farmers who are net buyers of food, firms that import certain raw materials, as well as foreign exporters. Therefore, by making food more expensive and less accessible, they could reduce food security. We also argue that an additional issue with the goal of self-sufficiency in Indonesia is lack of comparative advantage in some food items, including chicken meat and chicken products. Legally, although the Panel highlighted that self-sufficiency is a legitimate policy objective that as such does not lead to a violation of WTO law, the Indonesia–Chicken case leads to the question of whether, in practice, it is feasible to implement a self-sufficiency target resorting only to WTO-compliant policies. Finally, we discuss potential alternative economic policies and examine whether Indonesia could have attained its food self-sufficiency objective in a WTO-consistent manner.

WTO rules prohibit Free Trade Areas (FTAs) that provide tariff-free access or services liberalization in only one or a few sectors. In this sense, a narrow, sectoral approach to concluding an FTA between the EU and the UK would contravene WTO law. However, assuming the EU and the UK were able to agree a substantially broad tariff-free FTA, WTO rules would not prevent them from moving further to maintain the bulk of the benefits of the Customs Union and the Single Market in a few key sectors. They could establish customs union-like conditions by coordinating external tariffs in some sectors and agreeing on relaxed Rules of Origin (RoOs) administered lightly and Single Market-like access could be approximated through sectoral Mutual Recognition Agreements. Such an approach would enable continued deep integration, whose desirability has been signalled on both sides. It would fall short of current market access levels even in the selected sectors, and, in the case of tariff coordination, re-create some of the limits to an independent trade policy that Brexit aimed to remove. If the trade-off were deemed desirable, however, the approach could be reconciled with WTO rules including the ‘Most Favoured Nation’ requirement that equal treatment be awarded to all WTO Member States.

This paper poses a hypothetical WTO challenge to the Passenger Name Records (PNR) Transfer Agreements the European Union has signed with the United States (as well as Australia and Canada). The focus will be on a possible citation of GATS Article XIV National Security Exception by the EU, and the viability of such a defense. Because of the absence of case law, this paper will also attempt to synthesize an acceptable standard for assessing GATS National Security Exception citations.

Labour standards provisions within the Trade and Sustainable Development (TSD) chapters of EU Free Trade Agreements (FTAs) are presented as a key element of the EU's commitment to a ‘value-based trade agenda’. But criticism of TSD chapters has led the European Commission to commit to improving their implementation and enforcement, creating a critical juncture in the evolution of the EU's trade–labour linkage. This contribution synthesizes findings from academic studies that have examined the effectiveness of labour standards provisions in EU FTAs. It then considers the reform agenda as presented by the European Commission, and explains how some of the proposals could tackle failures identified. However, it also argues that there are various limitations with the Commission's current proposals, and outlines how legal obligations and institutional mechanisms created by trade agreements could better be harnessed to improve working conditions and rights at work around the world.

In anti-dumping procedures, the EU authorities have adjusted State-distorted input costs in the constructed normal value to market benchmarks. This methodology increases the amount of anti-dumping duties and hence import barriers to foreign goods produced with low-priced raw materials. Such cost adjustments are based on certain EU anti-dumping provisions that implement corresponding World Trade Organization (WTO) rules under which the cost of input must be derived, as a principle, from the records of target companies in the exporting country if those records, inter alia, reasonably reflect production costs of the product under investigation. But in the case of input costs distorted by the government, the EU authorities have typically deviated from this principle relying on alternative sources on the grounds of unreasonable costs. While the EU jurisprudence has so far been generally lenient towards this methodology as applied to significant distortions in the raw material (upstream) market, the recent WTO appellate ruling in EU–Biodiesel is rather negative on its use in the presence of the valid domestic records. This article examines the EU anti-dumping practice as reviewed in both EU and WTO judicial proceedings and discusses some legislative reforming options under both regimes. It concludes that the WTO anti-dumping rules should be amended to allow market-oriented cost adjustments in the normal value, on the one hand, and ensure parallel export price adjustments, on the other.