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Maintaining Relevance in a Much-Changed World: Reforming WTO Dispute Settlement 在变化很大的世界中保持相关性:改革WTO争端解决机制
IF 3.1 1区 社会学 Q1 Social Sciences Pub Date : 2023-01-11 DOI: 10.1093/jiel/jgac065
Valerie Hughes
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.
世界贸易组织(世贸组织)及其争端解决机制于1995年成立,广受好评。两者都取得了很大成功:世贸组织成员迅速扩大,世贸组织争端解决机制被证明是历史上最活跃的国家间争端解决机制。然而,近年来,世贸组织受到越来越多的批评,因为扩大世贸组织纪律并使其现代化的谈判成果有限,而该系统最活跃的用户对争端解决系统的不满导致上诉审查瘫痪。要求世贸组织进行改革的呼声越来越普遍。在2022年6月的部长级会议上,世贸组织成员承诺致力于进行必要的改革,包括进行讨论,以期在2024年前建立一个全面、运行良好的争端解决体系。这是一项艰巨的任务,因为就争端解决制度修正案达成一致的长期努力不仅失败了,而且突显了成员国解决争端的首选方法存在重大差异。此外,实施重大变革所需的法律程序可能需要数年时间。本文确定了对争端解决系统的调整,这些调整可能会带来重要的效率,并且可以在2024年最后期限到来之前生效。
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引用次数: 0
Taking Stakeholder Engagement in International Policy-Making Seriously: Is the WTO Finally Opening Up? 认真对待利益相关者参与国际决策:WTO最终开放了吗?
1区 社会学 Q1 Social Sciences Pub Date : 2023-01-11 DOI: 10.1093/jiel/jgac061
Joost Pauwelyn
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.
面对多重全球性挑战,各国际论坛正在制定重大的政策举措。在许多这样的会谈和讨论中,一个核心问题是如何公平有效地与外部利益相关者接触。虽然落后了几十年,但世界贸易组织已经意识到更积极地让利益攸关方参与国际贸易决策的潜力,既可以制定更好的政策,也可以减轻实施方面的挑战。这一贡献描述了在一些成员主导的非正式讨论和对话中采取的开创性步骤:贸易和环境可持续性结构化讨论以及塑料污染和环境可持续塑料贸易非正式对话。这篇文章的目的是描述和赞扬最近的发展,并就如何使这一进程更具包容性和活力,并有可能将其扩展到世界贸易组织的正式活动中展开讨论。在这方面,世界卫生组织正在就一项新的大流行病条约进行的谈判被用来提供一个有趣的比较点。
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引用次数: 0
Corporate Power and Accountability in International Economic Law 国际经济法中的公司权力与责任
IF 3.1 1区 社会学 Q1 Social Sciences Pub Date : 2023-01-11 DOI: 10.1093/jiel/jgac060
Lucinda A. Low
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.
在过去25年里,各国、国际机构和私营实体一直在努力遏制腐败,促进企业的社会责任。这种努力产生了好坏参半的结果,但却导致了更大的国际合作和明确规范的确立。加强跨国公司行为者的问责制仍然是一项挑战,但这取决于董事会、各国政府、非政府组织和国际机构之间的合作。本文分析了市政法规、非约束性“软法”和民间标准之间的关系。单凭一己之力无法有效解决不负责任的企业行为问题,但它们共同在创造更公平、更负责任的商业环境方面迈出了有意义的一步。
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引用次数: 0
Supporting the Transition to Climate-Neutral Production: An Evaluation Under the Agreement on Subsidies and Countervailing Measures 支持向气候中和生产过渡:补贴与反补贴措施协定下的评估
1区 社会学 Q1 Social Sciences Pub Date : 2023-01-09 DOI: 10.1093/jiel/jgac058
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.
为了达到气候中和,需要减少基本材料生产中的碳排放。当政府通过采取支持措施鼓励这种转变时,这些措施必须符合《补贴与反补贴措施协定》。本文分析了《补贴与反补贴措施协定》下选定的三种支持方案:(1)排放交易制度下对有碳泄漏风险的设施运营商的免费分配;(ii)将对碳密集型材料收费与免费分配相结合;(三)碳差异合同,政府承担相对于传统生产过程的气候中性生产过程的增量成本。分析表明,现行的自由分配制度容易受到《补贴与反补贴措施协定》的挑战。相比之下,免费分配和对碳密集型材料收费的结合将确保一致的碳定价,因此不会构成《补贴与反补贴措施协定》下的补贴。同样,碳排放合同的设计也可以使之不产生利益,从而不构成补贴。
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引用次数: 1
Trade Agreements and Sustainability: Exploring the Potential of Global Value Chain (GVC) Obligations 贸易协定与可持续性:探索全球价值链义务的潜力
IF 3.1 1区 社会学 Q1 Social Sciences Pub Date : 2023-01-07 DOI: 10.1093/jiel/jgac057
J. Harrison
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.
本文研究了区域和双边贸易协定中以全球价值链(GVC)为导向的可持续性条款的潜力。这些条款将社会和环境义务直接强加给全球价值链,而不是为政府创造义务。研究了全球价值链条款的理论潜力,并引入了有效性和合法性的概念,作为评估它们的价值。然后仔细审查了最近出台的四套规定。这些是(i)印尼-欧洲自由贸易联盟(EFTA)全面经济伙伴关系协定(CEPA)自由贸易协定中的棕榈油可持续性标准,(ii)欧盟-南方共同市场联盟协定中的福利标准,(iii)美国-墨西哥-加拿大协定(USMCA)中汽车行业最低平均工资的规定,以及(iv)直接针对工厂的集体谈判和自由的执行,也是在USMCA中。所有这些规定都发现有重大缺陷。与此同时,有三种不同的治理模式支撑着它们,即(i)第三方认证机制,(ii)其中一方的国内法规,以及(iii)为有关自由贸易协定制定的定制安排。因此,本文考虑了每种治理模式在有效性和合法性方面的潜力和缺点,以及包括单边措施和特定主体贸易协定在内的替代和补充承诺。
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引用次数: 1
The Use of Trade Coercion and China’s Model of ‘Passive-Aggressive Legalism’ 贸易胁迫的使用与中国的“被动侵略法家”模式
1区 社会学 Q1 Social Sciences Pub Date : 2023-01-07 DOI: 10.1093/jiel/jgac055
Ben Czapnik, Bryan Mercurio
ABSTRACT There is a growing view among both governments and commentators, especially in the West, that China engages in acts of trade coercion which violate the law and spirit of the multilateral trading system. And while there is a developing literature discussing this issue, the debate currently lacks clarity about how China’s approach differs from other types of coercion which do not inspire the same backlash. This article advances the literature by suggesting that Chinese trade coercion is particularly threatening to the rules-based system (RBS) as it uses methods that had largely been eradicated under the GATT/WTO system. Chinese trade coercion therefore represents a “new” and important phenomenon in international trade as it uses coercion for strategic purposes, usually as retaliation for perceived affronts in matters unrelated to trade. We label this approach “passive-aggressive legalism” because, rather than relying on open dialogue to resolve diplomatic frictions, China implements informal and “plausibly deniable” retaliatory measures to indirectly make its displeasure known and felt. The article concludes by making broader claims about why China’s approach represents a threat to the WTO system and may even undermine the effectiveness of rules-based constraints in other domains of global regulation.
越来越多的政府和评论家,尤其是西方国家的政府和评论家认为,中国的贸易胁迫行为违反了多边贸易体制的法律和精神。尽管有越来越多的文献讨论这一问题,但目前的争论尚不清楚中国的做法与其他类型的胁迫有何不同,后者不会引发同样的反弹。本文通过提出中国的贸易胁迫对基于规则的体系(RBS)尤其具有威胁性,因为它使用的方法在关贸总协定/世贸组织体系下基本上已经被根除了。因此,中国的贸易胁迫在国际贸易中代表了一种“新的”和重要的现象,因为它将胁迫用于战略目的,通常是对与贸易无关的事务上的冒犯进行报复。我们将这种做法称为“被动攻击的法律主义”,因为中国不是依靠公开对话来解决外交摩擦,而是采取非正式的、“貌似可否认的”报复措施,间接地让人们知道和感受到它的不满。文章最后提出了更广泛的主张,即为什么中国的做法对WTO体系构成了威胁,甚至可能破坏其他全球监管领域基于规则的约束的有效性。
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引用次数: 0
From Bananas to Large Civil Aircraft: An On-Going Quest for Value-Added in the Computation of Countermeasures at the WTO 从香蕉到大型民用飞机:WTO对抗措施计算中对增值的持续追求
1区 社会学 Q1 Social Sciences Pub Date : 2023-01-06 DOI: 10.1093/jiel/jgac056
Marc-Antoine Couet
ABSTRACT This article discusses the methodology used in the quantification of the level of authorized countermeasures in trade disputes settled under the auspices of the World Trade Organization (WTO)’s dispute settlement system. It discusses the legal framework pertaining to the quantification of the level of the remedies provided for under the WTO agreements in case of failure by the respondent to timely comply with the rulings and recommendations of the Dispute Settlement Body and where no agreement on compensation is reached: suspension of concessions and countermeasures. It analyzes whether the current understanding of ‘damage’ in WTO law is consistent with the prevailing economic reality and suggests an alternate interpretation that would account for value actually added on the territory of the complainant as a basis for quantification of the level of countermeasures. Finally, the article responds to ‘pragmatic’ arguments advanced by those who conceptually oppose to a methodological reform that would authorize countermeasures based on the share of value-added attributable to the complainant rather than on the gross amount of exports of the good affected by the impugned measure.
摘要本文探讨了在世界贸易组织(WTO)争端解决机制下解决的贸易争端中授权反制措施水平的量化方法。本部分讨论了在被申请人未能及时遵守争端解决机构的裁决和建议且未就赔偿达成协议的情况下,与量化世贸组织协定规定的救济水平有关的法律框架:暂停减让和反措施。它分析了目前世贸组织法律中对“损害”的理解是否与普遍的经济现实相一致,并提出了另一种解释,该解释将考虑在投诉人领土上实际增加的价值,作为量化反制措施水平的基础。最后,文章回应了那些从概念上反对方法改革的人提出的“实用主义”论点,这种方法改革将基于可归属于投诉人的增值份额而不是基于受质疑措施影响的商品的出口总额来授权反制措施。
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引用次数: 0
Investment Law in the Twenty-First Century: Things Will Have to Change in Order to Remain the Same 21世纪的投资法:为了保持不变,事情必须改变
1区 社会学 Q1 Social Sciences Pub Date : 2023-01-06 DOI: 10.1093/jiel/jgac054
Anne van Aaken
ABSTRACT The future of investment law has in store fundamental shifts, not incremental changes, in three substantive issue areas, which pose immense challenges to the system as it currently stands, namely, climate change, national security, and investor obligations. This article describes those challenges and argues that for these shifts to be accommodated, abolition is not desirable, but reform is necessary and urgent. It suggests procedural ways forward.
在气候变化、国家安全和投资者义务这三个实质性问题领域,投资法的未来将发生根本性的变化,而不是渐进式的变化,这对目前的制度构成了巨大的挑战。本文描述了这些挑战,并认为为了适应这些转变,废除是不可取的,但改革是必要和紧迫的。它提出了程序性的前进方式。
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引用次数: 0
International Trade Agreements: Laboratories of Innovation or Propellers of Fragmentation? 国际贸易协定:创新的实验室还是分裂的推进器?
IF 3.1 1区 社会学 Q1 Social Sciences Pub Date : 2022-12-28 DOI: 10.1093/jiel/jgac050
Meredith Kolsky Lewis
The original ‘building blocks or stumbling blocks’ debate considered the positive and negative impacts on the multilateral trading system in the form of the World Trade Organization (WTO) of free trade agreements (FTAs) at a time when FTAs were primarily bilateral and/or regional. This article recasts the debate in light of modern realities. Since the collapse of the Doha Round, WTO Members have increasingly formed FTAs with more than one large economy; plurilateral as well as bilateral groupings; and agreements including WTO-plus commitments. Further, Members have pursued plurilateral subject-specific negotiations both outside the WTO such as the Trade in Services Agreement and within, in the form of Joint Statement Initiatives. The article assesses from General Agreement on Tariffs and Trade formation to the present the extent to which the full range of trade agreements have facilitated experimentation and to which such agreements have had a fragmenting impact on the WTO. While the answers to these questions are nuanced, what is clear is that Members who wish to liberalize more deeply than other Members will find a way to do so outside the WTO rather than abandoning their objectives. As such, the debate today is no longer whether bilateral or regional FTAs are good or bad for a single undertaking-based multilateral WTO. Instead, we must weigh whether it is preferable for new plurilateral initiatives to be accommodated within the WTO at the expense of strict consensus or to reject such initiatives with the understanding that powerful Members will instead to pursue their objectives in plurilateral arrangements outside the WTO.
在自由贸易协定主要是双边和/或区域性的时候,最初的“基石或绊脚石”辩论考虑了以世界贸易组织(WTO)形式的自由贸易协定(fta)对多边贸易体制的积极和消极影响。这篇文章根据现代现实情况对这场辩论进行了重新阐释。自多哈回合谈判破裂以来,世贸组织成员越来越多地与一个以上的大型经济体签订自由贸易协定;诸边和双边分组;以及包括wto +承诺在内的协议。此外,各成员在世贸组织外(如《服务贸易协定》)和在世贸组织内(以联合声明倡议的形式)进行了诸边具体议题谈判。本文评估了从《关税与贸易总协定》的形成到现在,各种贸易协定在多大程度上促进了试验,以及这些协定在多大程度上对世贸组织产生了分裂性影响。虽然这些问题的答案是微妙的,但很明显的是,希望比其他成员更深入自由化的成员将在WTO之外找到一种方法,而不是放弃他们的目标。因此,今天的辩论不再是双边或区域自由贸易协定对一个以单一承诺为基础的多边WTO是好是坏。相反,我们必须权衡,在世贸组织内部以牺牲严格的共识为代价容纳新的诸边倡议,还是在认识到强大的成员将转而在世贸组织之外的诸边安排中追求其目标的情况下拒绝这些倡议,这是更好的选择。
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引用次数: 0
The Evolution of the ‘Trade and …’ ‘Debate’—A View from ASEAN “贸易与……”“辩论”的演变——来自东盟的观点
IF 3.1 1区 社会学 Q1 Social Sciences Pub Date : 2022-12-27 DOI: 10.1093/jiel/jgac051
Locknie Hsu
This article explores the ‘Trade and …’ ‘Debate’ in the context of trade and environment issues. It provides an explanation of the evolution of discussions of such issues in a non-dispute settlement context, using developments in the Association of Southeast Asian Nations’ integration efforts as illustrations. It also highlights a number of opportunities for trade and environment collaboration in negotiations for free trade agreement and Digital Economy Partnership Agreements.
这篇文章探讨了在贸易和环境问题的背景下“贸易和……”的“辩论”。它以东南亚国家联盟(Association of Southeast Asian Nations)一体化努力的发展为例,解释了在非争端解决背景下对这些问题讨论的演变。它还强调了自由贸易协定和数字经济伙伴关系协定谈判中贸易和环境合作的一些机会。
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引用次数: 0
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Journal of International Economic Law
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