Since the birth of the Journal of International Economic Law (JIEL) in 1998, the foundations of international economic law have undergone multidimensional changes. Emerging political and economic challenges have shaped international economic law into becoming inherently dynamic; not only have new frameworks developed for analyses of international economic relations, but novel social and environmental aspects of government policy now also fall within the field’s ambit. These challenges have shaken the normative foundations of international economic law and new paradigms in this field of law have emerged. Recent developments addressing matters ranging from the climate crisis to the coronavirus disease 2019 pandemic signify a turn in the WTO from negotiating trade rules to addressing pressing concerns facing humankind. When JIEL was first established, civil society renewed its calls for the inclusion of social and environmental concerns in so-called ‘trade and …’ policies. Today, the interlinkages between trade and other issues form an integral part of the international trading system. These new challenges and shifts in economic policy bring (some) traditional understandings of international economic law into question, and challenge the various normative underpinnings of international economic law in three ways: first, in the rise of novel approaches to international economic norm creation; second, in the expansion of subject areas covered by international economic rules; and third, in the steady disintegration of the traditional binaries, such as those between hard and soft law, between public and private actors, and between human rights and investment. These three changes have further provoked the development of analytical frameworks to study these norms. The eclectic and wide-ranging contributions in this special issue offer insightful critiques and provocative challenges to the community of international economic law actors facing unprecedented problems as the Journal celebrates its twenty-fifth anniversary.
{"title":"New (Paradigms In) International Economic Law","authors":"A. Bjorklund, G. Marceau","doi":"10.1093/jiel/jgac062","DOIUrl":"https://doi.org/10.1093/jiel/jgac062","url":null,"abstract":"\u0000 Since the birth of the Journal of International Economic Law (JIEL) in 1998, the foundations of international economic law have undergone multidimensional changes. Emerging political and economic challenges have shaped international economic law into becoming inherently dynamic; not only have new frameworks developed for analyses of international economic relations, but novel social and environmental aspects of government policy now also fall within the field’s ambit. These challenges have shaken the normative foundations of international economic law and new paradigms in this field of law have emerged. Recent developments addressing matters ranging from the climate crisis to the coronavirus disease 2019 pandemic signify a turn in the WTO from negotiating trade rules to addressing pressing concerns facing humankind. When JIEL was first established, civil society renewed its calls for the inclusion of social and environmental concerns in so-called ‘trade and …’ policies. Today, the interlinkages between trade and other issues form an integral part of the international trading system. These new challenges and shifts in economic policy bring (some) traditional understandings of international economic law into question, and challenge the various normative underpinnings of international economic law in three ways: first, in the rise of novel approaches to international economic norm creation; second, in the expansion of subject areas covered by international economic rules; and third, in the steady disintegration of the traditional binaries, such as those between hard and soft law, between public and private actors, and between human rights and investment. These three changes have further provoked the development of analytical frameworks to study these norms. The eclectic and wide-ranging contributions in this special issue offer insightful critiques and provocative challenges to the community of international economic law actors facing unprecedented problems as the Journal celebrates its twenty-fifth anniversary.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46997859","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Originally, the multilateral trading regime did not address state capitalism in a comprehensive manner, since none of the General Agreement on Tariffs and Trade founders had espoused this form of economic governance. The General Agreement on Tariffs and Trade did contain specific provisions dealing with state trading and with subsidies, but nothing more. This situation has remained unchanged over the years, except for tightening the screws in areas already regulated (like subsidies), even though the General Agreement on Tariffs and Trade/World Trade Organization membership has become more and more heterogenous, with some members being overtly state capitalists. This was the case because these new members were either too small to really matter (e.g. Hungary) or because it was hoped that bigger players would transform into market economies (e.g. China). In hindsight, this has proved to be a grave error, since many of the difficulties that the world trading system currently faces originate in the unsatisfactory disciplining of state intervention in the workings of the economy of World Trade Organization members.
{"title":"State Capitalism in the GATT/WTO Legal Order","authors":"P. Mavroidis, A. Sapir","doi":"10.1093/jiel/jgad001","DOIUrl":"https://doi.org/10.1093/jiel/jgad001","url":null,"abstract":"\u0000 Originally, the multilateral trading regime did not address state capitalism in a comprehensive manner, since none of the General Agreement on Tariffs and Trade founders had espoused this form of economic governance. The General Agreement on Tariffs and Trade did contain specific provisions dealing with state trading and with subsidies, but nothing more. This situation has remained unchanged over the years, except for tightening the screws in areas already regulated (like subsidies), even though the General Agreement on Tariffs and Trade/World Trade Organization membership has become more and more heterogenous, with some members being overtly state capitalists. This was the case because these new members were either too small to really matter (e.g. Hungary) or because it was hoped that bigger players would transform into market economies (e.g. China). In hindsight, this has proved to be a grave error, since many of the difficulties that the world trading system currently faces originate in the unsatisfactory disciplining of state intervention in the workings of the economy of World Trade Organization members.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46355683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ABSTRACT The past decade has witnessed the creation of a new international tax regime. The original international tax regime was created a century ago by the League of Nations. Until the 1980s, it functioned reasonably well and prevented most instances of double taxation and double non-taxation by allocating cross-border income between home and host jurisdictions based on a compromise reached in 1923. However, since the advent of globalization in the 1980s and digitalization in the 1990s, the original international tax regime ceased to function as intended. The main problems were the increased mobility of capital related to increased intangibility and digitalization, together with a relaxation of capital controls and increased tax competition. These developments posed a problem for countries that wished to leave their borders open to reap the benefits of globalization and to engage in tax competition to attract investment. The outcome was a significant fall in tax revenues that threatened the social safety net of the modern welfare state. The trilemma of open borders, tax competition, and satisfying voters’ demand for social insurance culminated in the financial crisis of 2008–09, where many countries were forced to implement austerity measures at the same time that parliamentary hearings, leaks, and media reports revealed that rich individuals and large corporations were paying very little tax on cross-border income. The results over the past decade have been the creation of a new international tax regime designed to curb both tax evasion by the rich and tax competition among countries seeking to attract business activity within their borders by granting various preferential tax provisions to multinational enterprises. The key question going forward is how the new international tax regime will deal with international (in)equity, i.e. the economic digital divide. In what follows, I will first discuss the decline of the original international tax regime from 1980 to 2009, then the creation of the new international tax regime from 2010 on, and finally the implications of the new international tax regime for the economic digital divide.
过去的十年见证了新的国际税收制度的诞生。最初的国际税收制度是一个世纪前由国际联盟(League of Nations)创立的。直到20世纪80年代，它还运行得相当好，并根据1923年达成的妥协，通过在母国和东道国司法管辖区之间分配跨境收入，防止了大多数双重征税和双重不征税的情况。然而，自20世纪80年代全球化和90年代数字化出现以来，最初的国际税收制度不再像预期的那样发挥作用。主要问题是与无形性和数字化增加相关的资本流动性增加，以及资本管制的放松和税收竞争的加剧。这些事态发展给那些希望开放边界以从全球化中获益并参与税收竞争以吸引投资的国家带来了问题。其结果是税收收入大幅下降，威胁到现代福利国家的社会安全网。开放边界、税收竞争和满足选民对社会保险需求的三难困境在2008-09年的金融危机中达到顶峰，许多国家被迫实施紧缩措施，与此同时，议会听证会、泄密和媒体报道显示，富裕的个人和大公司对跨境收入只缴纳了很少的税。过去十年的结果是建立了一种新的国际税收制度，旨在遏制富人的逃税行为和各国之间的税收竞争，这些国家试图通过给予跨国企业各种优惠税收规定来吸引其境内的商业活动。未来的关键问题是新的国际税收制度将如何处理国际(不)公平，即经济数字鸿沟。在接下来的内容中，我将首先讨论1980年至2009年原有国际税收制度的衰落，然后讨论2010年以来新国际税收制度的建立，最后讨论新国际税收制度对经济数字鸿沟的影响。
{"title":"International Taxation, Globalization, and the Economic Digital Divide","authors":"Reuven Avi-Yonah","doi":"10.1093/jiel/jgac068","DOIUrl":"https://doi.org/10.1093/jiel/jgac068","url":null,"abstract":"ABSTRACT The past decade has witnessed the creation of a new international tax regime. The original international tax regime was created a century ago by the League of Nations. Until the 1980s, it functioned reasonably well and prevented most instances of double taxation and double non-taxation by allocating cross-border income between home and host jurisdictions based on a compromise reached in 1923. However, since the advent of globalization in the 1980s and digitalization in the 1990s, the original international tax regime ceased to function as intended. The main problems were the increased mobility of capital related to increased intangibility and digitalization, together with a relaxation of capital controls and increased tax competition. These developments posed a problem for countries that wished to leave their borders open to reap the benefits of globalization and to engage in tax competition to attract investment. The outcome was a significant fall in tax revenues that threatened the social safety net of the modern welfare state. The trilemma of open borders, tax competition, and satisfying voters’ demand for social insurance culminated in the financial crisis of 2008–09, where many countries were forced to implement austerity measures at the same time that parliamentary hearings, leaks, and media reports revealed that rich individuals and large corporations were paying very little tax on cross-border income. The results over the past decade have been the creation of a new international tax regime designed to curb both tax evasion by the rich and tax competition among countries seeking to attract business activity within their borders by granting various preferential tax provisions to multinational enterprises. The key question going forward is how the new international tax regime will deal with international (in)equity, i.e. the economic digital divide. In what follows, I will first discuss the decline of the original international tax regime from 1980 to 2009, then the creation of the new international tax regime from 2010 on, and finally the implications of the new international tax regime for the economic digital divide.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"131 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135898651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ABSTRACT The International Centre for Settlement of Investment Disputes was established in 1966 as a facility for the resolution of international investment disputes. Today, it has 158 member states and has administered roughly 70% of all known investor-state cases. International Centre for Settlement of Investment Disputes has taken a leadership role in modernizing the procedures for investor-state dispute resolution, especially in the 2006 and 2022 amendments to those rules.
{"title":"The Role of ICSID in International Economic Law","authors":"Meg Kinnear","doi":"10.1093/jiel/jgac059","DOIUrl":"https://doi.org/10.1093/jiel/jgac059","url":null,"abstract":"ABSTRACT The International Centre for Settlement of Investment Disputes was established in 1966 as a facility for the resolution of international investment disputes. Today, it has 158 member states and has administered roughly 70% of all known investor-state cases. International Centre for Settlement of Investment Disputes has taken a leadership role in modernizing the procedures for investor-state dispute resolution, especially in the 2006 and 2022 amendments to those rules.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135948049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Platforms constitute a novel context for social interaction. Physical distance makes little to no difference to interaction, and so the frequency and intensity of cross-territorial border interaction grow dramatically. This growth in interaction will be globalization on steroids. Platforms increase both collision among national rules (jurisdictional collision) and collision at the international level among functional rules (fragmentation). Revised normative and organizational tools will be needed to manage the increased globalization and fragmentation resulting from the rise of platform commerce. These tools may include modifications and extensions of existing rules of trade law, but they will embrace other areas of regulation in a much more nuanced manner than has been necessary until now. The existing fragmentation or ‘siloed’ nature of our international trade and regulatory systems will need to be modified—lateralized—to allow a more coherent approach.
{"title":"Platforms and Global Governance: Globalization on Steroids","authors":"J. Trachtman","doi":"10.1093/jiel/jgac063","DOIUrl":"https://doi.org/10.1093/jiel/jgac063","url":null,"abstract":"\u0000 Platforms constitute a novel context for social interaction. Physical distance makes little to no difference to interaction, and so the frequency and intensity of cross-territorial border interaction grow dramatically. This growth in interaction will be globalization on steroids. Platforms increase both collision among national rules (jurisdictional collision) and collision at the international level among functional rules (fragmentation). Revised normative and organizational tools will be needed to manage the increased globalization and fragmentation resulting from the rise of platform commerce. These tools may include modifications and extensions of existing rules of trade law, but they will embrace other areas of regulation in a much more nuanced manner than has been necessary until now. The existing fragmentation or ‘siloed’ nature of our international trade and regulatory systems will need to be modified—lateralized—to allow a more coherent approach.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48499055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The World Trade Organization (WTO) and its dispute settlement mechanism were established in 1995 to great acclaim. Both have seen much success: WTO membership expanded apace, and the WTO dispute settlement mechanism proved to be the most active state-to-state dispute settlement mechanism in history. However, in recent years, the WTO has come under increasing criticism as negotiations to expand and modernize WTO disciplines have produced limited results and dissatisfaction with the dispute settlement system on the part of the system’s most active user led to the paralysis of appellate review. Calls for WTO reform have become widespread. At the June 2022 Ministerial Conference, WTO members committed to work toward necessary reform, including by conducting discussions with a view to having a fully and well-functioning dispute settlement system in place by 2024. This is a tall order, given that long-standing efforts to agree on amendments to the dispute settlement system not only failed but also highlighted significant differences in members’ preferred approaches for resolving disputes. In addition, the legal processes required to implement the major change could take years. This paper identifies adjustments to the dispute settlement system that could lead to important efficiencies and that can be effected before the 2024 deadline arrives.
{"title":"Maintaining Relevance in a Much-Changed World: Reforming WTO Dispute Settlement","authors":"Valerie Hughes","doi":"10.1093/jiel/jgac065","DOIUrl":"https://doi.org/10.1093/jiel/jgac065","url":null,"abstract":"\u0000 The World Trade Organization (WTO) and its dispute settlement mechanism were established in 1995 to great acclaim. Both have seen much success: WTO membership expanded apace, and the WTO dispute settlement mechanism proved to be the most active state-to-state dispute settlement mechanism in history. However, in recent years, the WTO has come under increasing criticism as negotiations to expand and modernize WTO disciplines have produced limited results and dissatisfaction with the dispute settlement system on the part of the system’s most active user led to the paralysis of appellate review. Calls for WTO reform have become widespread. At the June 2022 Ministerial Conference, WTO members committed to work toward necessary reform, including by conducting discussions with a view to having a fully and well-functioning dispute settlement system in place by 2024. This is a tall order, given that long-standing efforts to agree on amendments to the dispute settlement system not only failed but also highlighted significant differences in members’ preferred approaches for resolving disputes. In addition, the legal processes required to implement the major change could take years. This paper identifies adjustments to the dispute settlement system that could lead to important efficiencies and that can be effected before the 2024 deadline arrives.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48075839","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ABSTRACT In the face of multiple global challenges, major policy-making initiatives are under way at various international fora. In many of these talks and discussions, a central question is how to fairly and effectively engage external stakeholders. While lagging behind for decades, the World Trade Organization has woken up to the potential of more actively engaging stakeholders in international trade policy-making, both to make better policies and mitigate implementation challenges. This contribution describes the groundbreaking steps taken in a number of Member-led informal discussions and dialogues: the Trade and Environmental Sustainability Structured Discussions and the Informal Dialogue on Plastics Pollution and Environmentally Sustainable Plastics Trade. The objective of this contribution is to describe and applaud recent developments and initiate a discussion on how the process can be made more inclusive and robust and, potentially, also be extended to formal World Trade Organization activities. In this context, the World Health Organization’s ongoing negotiations on a new pandemic treaty are used to offer an interesting point of comparison.
{"title":"Taking Stakeholder Engagement in International Policy-Making Seriously: Is the WTO Finally Opening Up?","authors":"Joost Pauwelyn","doi":"10.1093/jiel/jgac061","DOIUrl":"https://doi.org/10.1093/jiel/jgac061","url":null,"abstract":"ABSTRACT In the face of multiple global challenges, major policy-making initiatives are under way at various international fora. In many of these talks and discussions, a central question is how to fairly and effectively engage external stakeholders. While lagging behind for decades, the World Trade Organization has woken up to the potential of more actively engaging stakeholders in international trade policy-making, both to make better policies and mitigate implementation challenges. This contribution describes the groundbreaking steps taken in a number of Member-led informal discussions and dialogues: the Trade and Environmental Sustainability Structured Discussions and the Informal Dialogue on Plastics Pollution and Environmentally Sustainable Plastics Trade. The objective of this contribution is to describe and applaud recent developments and initiate a discussion on how the process can be made more inclusive and robust and, potentially, also be extended to formal World Trade Organization activities. In this context, the World Health Organization’s ongoing negotiations on a new pandemic treaty are used to offer an interesting point of comparison.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136117873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past twenty-five years, States, international institutions, and private entities have attempted to rein in corruption and promote corporate social responsibility. Such efforts have produced mixed results but have led to greater international cooperation and the establishment of clear norms. Increasing the accountability of multinational corporate actors remains a challenge but depends upon cooperation among boards of directors, national governments, nongovernmental organizations, and international institutions. This paper analyzes the relationship among municipal statutes, nonbinding ‘soft law’, and private standards. None on their own can effectively solve the problem of irresponsible corporate behavior but together have made meaningful steps in creating a more fair and accountable business environment.
{"title":"Corporate Power and Accountability in International Economic Law","authors":"Lucinda A. Low","doi":"10.1093/jiel/jgac060","DOIUrl":"https://doi.org/10.1093/jiel/jgac060","url":null,"abstract":"\u0000 Over the past twenty-five years, States, international institutions, and private entities have attempted to rein in corruption and promote corporate social responsibility. Such efforts have produced mixed results but have led to greater international cooperation and the establishment of clear norms. Increasing the accountability of multinational corporate actors remains a challenge but depends upon cooperation among boards of directors, national governments, nongovernmental organizations, and international institutions. This paper analyzes the relationship among municipal statutes, nonbinding ‘soft law’, and private standards. None on their own can effectively solve the problem of irresponsible corporate behavior but together have made meaningful steps in creating a more fair and accountable business environment.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44676049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Roland Ismer, Harro van Asselt, Jennifer Haverkamp, Michael Mehling, Karsten Neuhoff, Alice Pirlot
ABSTRACT To reach climate neutrality, carbon emissions from the production of basic materials need to be curtailed. When governments encourage this transition by adopting support measures, the measures must comply with the Agreement on Subsidies and Countervailing Measures. This article analyzes three selected support schemes under the Agreement on Subsidies and Countervailing Measures: (i) free allocation under emissions trading systems to operators of installations at risk of carbon leakage; (ii) the combination of a charge on carbon-intensive materials with free allocation; and (iii) carbon contracts for difference, under which governments cover the incremental costs of climate-neutral production processes relative to conventional processes. The analysis reveals that the current regime of free allocation is vulnerable to challenges under the Agreement on Subsidies and Countervailing Measures. By contrast, the combination of free allocation and a charge on carbon-intensive materials would ensure consistent carbon pricing and thus would not amount to a subsidy under the Agreement on Subsidies and Countervailing Measures. In a similar vein, the carbon contracts for difference could be designed so that they would not confer a benefit and hence not constitute a subsidy.
{"title":"Supporting the Transition to Climate-Neutral Production: An Evaluation Under the Agreement on Subsidies and Countervailing Measures","authors":"Roland Ismer, Harro van Asselt, Jennifer Haverkamp, Michael Mehling, Karsten Neuhoff, Alice Pirlot","doi":"10.1093/jiel/jgac058","DOIUrl":"https://doi.org/10.1093/jiel/jgac058","url":null,"abstract":"ABSTRACT To reach climate neutrality, carbon emissions from the production of basic materials need to be curtailed. When governments encourage this transition by adopting support measures, the measures must comply with the Agreement on Subsidies and Countervailing Measures. This article analyzes three selected support schemes under the Agreement on Subsidies and Countervailing Measures: (i) free allocation under emissions trading systems to operators of installations at risk of carbon leakage; (ii) the combination of a charge on carbon-intensive materials with free allocation; and (iii) carbon contracts for difference, under which governments cover the incremental costs of climate-neutral production processes relative to conventional processes. The analysis reveals that the current regime of free allocation is vulnerable to challenges under the Agreement on Subsidies and Countervailing Measures. By contrast, the combination of free allocation and a charge on carbon-intensive materials would ensure consistent carbon pricing and thus would not amount to a subsidy under the Agreement on Subsidies and Countervailing Measures. In a similar vein, the carbon contracts for difference could be designed so that they would not confer a benefit and hence not constitute a subsidy.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136378143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article investigates the potential of global value chain (GVC)-orientated sustainability provisions in regional and bilateral trade agreements (FTAs). Such provisions impose social and environmental obligations directly onto GVCs, as opposed to creating obligations for governments. The theoretical potential of GVC provisions is examined, and the concepts of effectiveness and legitimacy are introduced as values by which to assess them. Four recent sets of provisions are then scrutinized. These are (i) palm oil sustainability standards from the Indonesia–European Free Trade Association (EFTA) Comprehensive Economic Partnerhsip Agreement (CEPA) FTA, (ii) hen welfare standards in the European Union–Mercosur Association Agreement, (iii) a stipulation of a minimum average wage for the automobile industry in the US–Mexico–Canada Agreement (USMCA), and (iv) enforcement of collective bargaining and freedom of association directly against factories, also in the USMCA. All of these provisions are found to have significant deficiencies. At the same time, it is argued that three different governance models underpin them, namely (i) third-party certification schemes, (ii) domestic regulations of one of the parties, and (iii) bespoke arrangements created for the FTA in question. The article therefore considers the potential and drawbacks of each governance model in terms of their effectiveness and legitimacy, as well as alternative and complementary commitments including unilateral measures and subject-specific trade agreements.
{"title":"Trade Agreements and Sustainability: Exploring the Potential of Global Value Chain (GVC) Obligations","authors":"J. Harrison","doi":"10.1093/jiel/jgac057","DOIUrl":"https://doi.org/10.1093/jiel/jgac057","url":null,"abstract":"\u0000 This article investigates the potential of global value chain (GVC)-orientated sustainability provisions in regional and bilateral trade agreements (FTAs). Such provisions impose social and environmental obligations directly onto GVCs, as opposed to creating obligations for governments. The theoretical potential of GVC provisions is examined, and the concepts of effectiveness and legitimacy are introduced as values by which to assess them. Four recent sets of provisions are then scrutinized. These are (i) palm oil sustainability standards from the Indonesia–European Free Trade Association (EFTA) Comprehensive Economic Partnerhsip Agreement (CEPA) FTA, (ii) hen welfare standards in the European Union–Mercosur Association Agreement, (iii) a stipulation of a minimum average wage for the automobile industry in the US–Mexico–Canada Agreement (USMCA), and (iv) enforcement of collective bargaining and freedom of association directly against factories, also in the USMCA. All of these provisions are found to have significant deficiencies. At the same time, it is argued that three different governance models underpin them, namely (i) third-party certification schemes, (ii) domestic regulations of one of the parties, and (iii) bespoke arrangements created for the FTA in question. The article therefore considers the potential and drawbacks of each governance model in terms of their effectiveness and legitimacy, as well as alternative and complementary commitments including unilateral measures and subject-specific trade agreements.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":" ","pages":""},"PeriodicalIF":3.1,"publicationDate":"2023-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46912053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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