Law Commons^™

Noneconomic Objectives, Global Value Chains And International Cooperation, Bernard M. Hoekman, Petros C. Mavroidis, Douglas R. Nelson

Faculty Scholarship

Systemic conflicts increasingly affect the global value chains (GVCs) underpinning globalization by creating policy uncertainty and politicizing trade and investment decisions. Unilateral policies to attain competitiveness and noneconomic objectives (NEOs), including national security, create incentives for international cooperation to attenuate policy spillovers. Recent initiatives seeking to do so are organized around supply chain governance and need not be anchored in trade agreements. Whether such cooperation is feasible and can be designed to be effective in realizing NEOs is unclear. Plurilateral GVC-centered cooperation offers a potential path for states to pursue NEOs and reduce policy uncertainty for international business. Research offers …

China In The Wto Twenty Years On: How To Mend A Broken Relationship?, Petros C. Mavroidis, André Sapir

Faculty Scholarship

China’s participation in the World Trade Organization (WTO) has been a rollercoaster of milestones and frictions. China has emerged as a leading trading nation, which has contributed to the expansion of world trade. Some of its trading partners, however, and most vocally the United States, complain that China has reached its new status by eluding its WTO commitments. Under President Trump, the United States reacted strongly against China, almost bringing the WTO(but not China!) to its knees. These actions have been criticized in different ways: Some underline their unilateral character (and the ensuing legal issues they raise), whereas others focus …

Patriot Games: India And China: Brinkmanship In The Realm Of Apps, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

India recently decided to ban a slew of applications (“apps”), mostly Chinese, accessed on mobile phones and other internet-based devices citing privacy and security concerns arising from the surreptitious mining and profiling of user data that is collected by these apps. It found these activities to be prejudicial to the sovereignty and integrity of India, defence of India, security of the state and public order. China responded that it suspected India’s decision to ban these apps to have violated the obligations that India had committed to under the framework of he World Trade Organization (WTO). Through this paper, we explore …

Trade Integration In Turbulent Times, Petros C. Mavroidis

Faculty Scholarship

The WTO has been going through an existential crisis, from which it is like that it will not exit unscathed. If it is to remain an organization of universal membership, it will have to content itself to shallow integration. Its continuing policy relevance, will largely depend on the choices it will make about the nature of its own integration process. The good news is that no one can simply walk away from globalization. The downside (for the WTO) is that globalization is being increasingly administered through bilateral contracts.

Twin Crises In The Wto, And No Obvious Way Out, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Pause for a moment. Assume that, by magic wand, the Trump Administration changes its attitude, and agrees to new appointments to the Appellate Body (AB). Have the WTO problems disappeared simply because a complete AB is now in place? Even if matters such as Rule 15 are addressed,1 the distinction between facts and law is clarified and a resolution is found to concerns regarding the AB overstepping of its mandate, we are left with the fact that new trade agreements are being routinely negotiated outside the confines of the WTO, leading enforcement to migrate elsewhere. Is the AB crisis simply …

Competition Enforcement, Trade And Global Governance: A Few Comments, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

The debate on international antitrust has come from two perspectives. On the one hand, the trade community has emphasised the interface between trade policy and competition (policy and) enforcement. This interface, which was recognised from the outset of multilateral efforts to liberalise trade in what would become the GATT and eventually the WTO, focuses on the prospect that trade liberalisation through border instruments should not be undone by restrictive business practices (RBPs), placing a particular responsibility in this respect on competition enforcement. On the other hand, the antitrust community has emphasised the risk of inefficient enforcement when several jurisdictions can …

Sovereignty And Complex Interdependence: Some Surprising Indications Of Their Compatibility, Charles F. Sabel

Faculty Scholarship

Even as democratic sovereignty and globalization are increasingly seen as incompatible in theory, this chapter argues that, in some important realms, they are proving compatible in practice. As tariffs have fallen to negligible levels, trade agreements among rich countries have come to focus on reconciling regulatory differences. In many sectors, novel forms of cooperation have emerged that allow trade partners deliberately to investigate and learn from one another’s practices, eventually recognizing the equivalence of regimes that are not strictly identical — and in the process extending domestic political oversight to relations among states while often heightening domestic accountability. The emergent …

Taking Care Of Business: The Legal Affairs Division From The Gatt To The Wto, Petros C. Mavroidis

Faculty Scholarship

The WTO is usually referred to as a ‘member-driven organisation’. This term aims to capture the idea that it is states and customs territories, the members of the WTO, that have the initiative to decide on the direction of the institution. The WTO Secretariat is more or less what the term denotes: staff hired in order to help the members realise their aspirations. This is as true today as it was yesterday. Actually, over the years the Secretariat has for various reasons accumulated extra responsibilities, always with the tacit acquiescence or explicit acknowledgement of the members. In short, the members …

I Now Recognize You (And Only You) As Equal: An Anatomy Of (Mutual) Recognition Agreements In The Gats, Juan A. Marchetti, Petros C. Mavroidis

Faculty Scholarship

There is a plethora of writings regarding mutual recognition, which has long been recognized as a useful, and potentially powerful, means to tackle regulatory barriers impeding trade in services. Paradoxically, very little attention has been paid to empirical issues regarding recognition, such as the extent of unilateral or mutual recognition around the world. Observers, from both academic and policy quarters, have therefore been left with the impression that either recognition agreements were kept relatively secret, so that their benefits would not have to be extended to third parties, or they were not really so widespread as their merits would warrant, …

Climate Change And The Wto: Expected Battlegrounds, Surprising Battles, Daniel M. Firger, Michael B. Gerrard

Faculty Scholarship

This article examines the issue of climate change policy and international trade law. While conventional wisdom may have predicted that conflicts in trade law would emerge through climate-related protectionist measures, such as carbon tariffs on imports from countries with less stringent controls on greenhouse gas emissions, the authors point out that government support for climate-friendly technologies has in fact emerged as the primary battleground. The authors examine two recent disputes—between the United States and China and between Japan and Canada – over green subsidies and their implications for the future of clean energy.

Foreword, Jagdish N. Bhagwati

Faculty Scholarship

The launch of the Indian Journal of International Economic Law by the students at the National Law School of India University is a milestone. It fills an important lacuna in India's study of WTO law and should begin to provide us with informed perspectives on the evolving WTO jurisprudence excessively dominated by the perceptions and objectives of policymakers in powerful developed countries and by the activism of the gigantic, financially-flush NGOs like Friends of the Earth and Oxfam reflecting the viewpoints of their origin and location.

International Antitrust Negotiations And The False Hope Of The Wto, Anu Bradford

Faculty Scholarship

Multinational corporations ("MNCs") operate today in an increasingly open global trade environment. While tariff barriers have collapsed dramatically, several states and numerous scholars have raised concerns that the benefits of trade liberalization are undermined by various non-tariff barriers ("NTBs") to trade, including the anticompetitive business practices of private enterprise. As a result, demands to link trade and antitrust policies more closely by extending the coverage of the World Trade Organization ("WTO") to incorporate antitrust law have gathered momentum over the last decade.

Most advocates of a WTO antitrust agreement base their normative claims on largely intuitive assumptions about the necessity …

Afterword: The Question Of Linkage, Jagdish N. Bhagwati

Faculty Scholarship

Commenting on the papers in this symposium is paradoxically a difficult task. The authorsare remarkably distinguished and one can only learn from what they write. Indeed, I have learned much from them (especially from Dean David Leebron's splendid clarification of several aspects of linkage, a paper that shows that he should have been an Oxford philosopher if only he had not been such a successful legal scholar). Yet it is easy for an invited commentator to be overwhelmed by despair because the authors write for the most part as if in a research vacuum. There is little attempt at relating …

Crosby And The "One-Voice" Myth In U.S. Foreign Relations, Sarah H. Cleveland

Faculty Scholarship

In Crosby v. National Foreign Trade Council, the Supreme Court invalidated a Massachusetts government procurement statute that barred state entities from doing business with companies that did business in Burma. The plaintiffs, an organization of private companies with foreign operations, challenged the law on constitutional and statutory preemption grounds, arguing that it improperly conflicted with federal foreign relations authority. The Supreme Court limited its holding to implied statutory preemption, finding that the Massachusetts provision improperly compromised the President's ability "to speak for the Nation with one voice." Crosby thus joined a long line of decisions in which the Supreme …

Global Labor Rights And The Alien Tort Claims Act, Sarah H. Cleveland

Faculty Scholarship

Are labor rights human rights? Are some worker rights so fundamental that must be respected by all nations, and all corporations, under all circumstances? If so, who has the authority to define such rights, and how should they be enforced? What is the effect on the global economy of enforcing international worker rights? These are some of the questions confronted by the authors of Human Rights, Labor Rights, and International Trade, a compilation of essays by an international group of scholars, labor rights activists, and corporate executives addressing contemporary topics in the dialectic among labor, trade, and human rights.

The World Trading System, Jagdish N. Bhagwati

Faculty Scholarship

The Uruguay Round is closing this week after a marathon of negotiations stretching well over seven years; so the timing of this panel is exquisite, from my viewpoint. The ceremony, besides, is in Marrakech, an exotic place that sets our minds racing with thoughts of "Casablanca," Humphrey Bogart and Ingrid Bergman. Indeed, one can imagine a movie being made of this historic occasion that will transform the General Agreement on Tariffs and Trade (GAIT) into the World Trade Organization (WTO), with Peter Ustinov cast as Peter Sutherland, the brilliant and portly new director general of the GAIT who finally brought …

Gatt Membership In A Changing World Order: Taiwan, China, And The Former Soviet Republics, Lori Fisler Damrosch

Faculty Scholarship

My introduction to questions of GATT membership came in 1979 when, as an attorney in the U.S. Department of State, I was immersed in a series of issues concerning trade relations with the People's Republic of China ("China" or "PRC") and Taiwan ("Republic of China" or "ROC"). I kept hearing about the "Chinese seat" in the GATT as if it were some piece of furniture waiting to be taken out of storage and put back in the dining room. The image of a chair is hardly an apt way of visualizing the extraordinarily complex network of legal relationships that exists …