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Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven Jan 2019

Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and EGA agreements which grant tariff concession through HS classifications beyond the six digit level ("ex outs") in favour of "green" goods and discuss how these initiatives fit into the WTO legal regime. Even if the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access ...


Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore Jan 2018

Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore

Faculty Scholarship

The CJEU has become a gatekeeper. Ever since Opinion 1/91, the CJEU has been imposing barriers to the recognition of decisions by foreign jurisdictions. Its recent Achmea decision is the natural consequence of case law so far. This attitude would not be problematic by itself since, through this attitude, the European Union would still be liable at the international plane, even if it did not implement its international obligations (liability- over property rules). This is not the end of the story. The CJEU accepts the, in principle, relevance of decisions by some international jurisdictions. However, the CJEU has repeatedly ...


Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim Jan 2018

Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim

Faculty Scholarship

The Appellate Body (AB) of the WTO has issued over 140 reports but only eight separate opinions, four of which are genuinely dissenting. Such paucity, in fact, is the WTO’s implicit tradition inherited from GATT of prioritizing unanimous decisions, hoping they solidify the institution’s legitimacy and countries’ confidence in the system. But at the more individual level, an AB member’s decision to dissent is driven by multiple factors that have implications for the institution’s jurisprudence. First, the factors explain how the symbiotic relationship between an AB member and his or her nominating country – whose interests turn ...


Last Mile For Tuna (To A Safe Harbor): What Is The Tbt Agreement All About?, Petros C. Mavroidis Jan 2018

Last Mile For Tuna (To A Safe Harbor): What Is The Tbt Agreement All About?, Petros C. Mavroidis

Faculty Scholarship

The WTO Agreement on TBT (Technical Barriers to Trade) aims at taming NTBs (nontariff barriers), the main instrument segmenting markets nowadays. Some of the terms used to flesh out the commitments undertaken are borrowed from the GATT, and some originate in the modern regulatory reality as expressed through SDOs (standard-development organizations). It does not share a copy-cat function with the GATT, though. Alas, the WTO Appellate Body, by understanding words as ‘invariances’, e.g., interpreting them out of context (without asking what is the purpose for the TBT?), has not only exported its GATT case law, but also misapplied it ...


Die Another Day: Zeroing In On Targeted Dumping: Did The Ab Hit The Mark In Us – Washing Machines?, Petros C. Mavroidis, Thomas J. Prusa Jan 2018

Die Another Day: Zeroing In On Targeted Dumping: Did The Ab Hit The Mark In Us – Washing Machines?, Petros C. Mavroidis, Thomas J. Prusa

Faculty Scholarship

In US – Washing Machines, the WTO Appellate Body (AB) extended the prohibition of zeroing to the so-called exceptional (or W-T) methodology, where the dumping margin is established by comparing the weighted average normal value to export price of specific transactions. Given that the exceptional method was the only method under which the AB had not definitively rejected zeroing, this dispute may have hammered the last nail in the coffin of zeroing. Or, maybe not. The AB did not address a key issue, namely, what is the evidentiary standard that an investigating authority must meet in order to have legitimate recourse ...


Things Have Changed (Or Have They?): Tariff Protection And Environmental Concerns In The Wto, Petros C. Mavroidis, Damien J. Neven Jan 2018

Things Have Changed (Or Have They?): Tariff Protection And Environmental Concerns In The Wto, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and proposed EGA agreements which grant tariff concession in favor of "green" goods. We find that the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded. Still, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access conditional on meeting national regulations. We model the mechanism through which these tariff preferences provide incentives to change ...


Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel Jan 2017

Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel

Faculty Scholarship

Governments increasingly are seeking to use bilateral and regional trade agreements to reduce the cost-increasing effects of differences in product market regulation. They also pursue regulatory cooperation independent of trade agreements. It is important to understand what is being done through bilateral or plurilateral mechanisms to address regulatory differences, and to identify what, if any, role trade agreements can play in supporting international regulatory cooperation. This paper reflects on experience to date in regulatory cooperation and the provisions of recent trade agreements involving advanced economies that have included regulatory cooperation. We argue for a re-thinking by trade officials of the ...


Free Markets, State Involvement, And The Wto: Chinese State Owned Enterprises (Soes) In The Ring, Petros C. Mavroidis, Merit E. Jano Jan 2017

Free Markets, State Involvement, And The Wto: Chinese State Owned Enterprises (Soes) In The Ring, Petros C. Mavroidis, Merit E. Jano

Faculty Scholarship

The WTO has struggled with the treatment of nonmarket economies (NMEs). What was a nonissue in the original GATT (because of the homogeneity of participants) became quite an issue with the accession of formally centrally planned economies, which were not transformed to market economies, at least not in the eyes of the incumbents. Contracting this issue has proved to be so far always wanting, and leaving it to adjudicators has not produced good results either. With respect to Chinese SOEs this risks continuing to be an issue, since the contractually agreed deadline (2016) after which China should not be treated ...


Mfn Clubs And Scheduling Additional Commitments In The Gatt: Learning From The Gats, Bernard Hoekman, Petros C. Mavroidis Jan 2016

Mfn Clubs And Scheduling Additional Commitments In The Gatt: Learning From The Gats, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Scheduling additional commitments for policies affecting trade in goods in the GATT has been plagued by two sources of ambiguity: the treatment of changes introduced unilaterally by members subsequent to an initial commitment, and the treatment of new commitments by WTO members pertaining to nontariff policy measures affecting trade in goods. This is not the case for trade in services, as the GATS makes explicit provision for additional commitments to be scheduled. Neither secondary law, in the form of decisions formally adopted by the WTO membership, nor case law has clarified the situation for trade in goods. This matter is ...


The Wto Dispute Settlement System 1995-2016: A Data Set And Its Descriptive Statistics, Louise Johannesson, Petros C. Mavroidis Jan 2016

The Wto Dispute Settlement System 1995-2016: A Data Set And Its Descriptive Statistics, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

In this paper, we provide some descriptive statistics of the first twenty years of the WTO (World Trade Organization) dispute settlement that we have extracted from the data set that we have put together, and made publicly available.

The statistical information that we present here is divided into three thematic units: the statutory and de facto duration of each stage of the process, paying particular attention to the eventual conclusion of litigation; the identity and participation in the process of the various institutional players, that is, not only complainants and defendants, but also third parties, as well as the WTO ...


Trade, Social Preferences, And Regulatory Cooperation: The New Wto-Think, Thomas J. Bollyky, Petros C. Mavroidis Jan 2016

Trade, Social Preferences, And Regulatory Cooperation: The New Wto-Think, Thomas J. Bollyky, Petros C. Mavroidis

Faculty Scholarship

This paper advocates changes in the corporate governance of the World Trade Organization (WTO) to reflect the decline in tariffs and other border restraints to commerce and the emerging challenges of advancing freer trade and better regulation cooperation in a world economy dominated by global value chains. Together, these changes form an integration strategy that we refer to as the new WTO Think. This strategy remains rooted in the original rationale of the General Agreement on Trade and Tariffs (GATT) of reducing the negative externalities of unilateral action and solving important international coordination challenges, but is more inclusive of regulators ...


Ask For The Moon, Settle For The Stars: What Is A Reasonable Period To Comply With Wto Awards?, Petros C. Mavroidis, Niall Meagher, Thomas J. Prusa, Tatiana Yanguas Jan 2016

Ask For The Moon, Settle For The Stars: What Is A Reasonable Period To Comply With Wto Awards?, Petros C. Mavroidis, Niall Meagher, Thomas J. Prusa, Tatiana Yanguas

Faculty Scholarship

The World Trade Organization (WTO) dispute settlement process allows a defending Member a “reasonable period of time” (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest ...


Private Standards And The Wto: Reclusive No More, Petros C. Mavroidis, Robert Wolfe Jan 2016

Private Standards And The Wto: Reclusive No More, Petros C. Mavroidis, Robert Wolfe

Faculty Scholarship

Private standards are increasing in number, and they affect trade, but their status in the WTO remains problematic. Standards-takers are typically countries with little bargaining power, who cannot affect their terms of trade and thus, even if they possess domestic antitrust laws, will find it hard to persuade standard-setters to take account of their interests. Our concern is to bring more of these standards within the normative framework of the trade regime – that is, we worry that these private forms of social order can conflict with the fundamental norms of transparency and non-discrimination. The WTO membership has consumed itself in ...


The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis Jan 2016

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I ...


Dispute Settlement In The Wto: Mind Over Matter, Petros C. Mavroidis Jan 2016

Dispute Settlement In The Wto: Mind Over Matter, Petros C. Mavroidis

Faculty Scholarship

The basic point I advocate in this paper is that the WTO Dispute Settlement System aims to curb unilateralism. No sanctions can be imposed, unless if the arbitration process is through, the purpose of which is to ensure that reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons though, to doubt whether practice guarantees full reciprocity. The insistence on calculating remedies prospectively, and not as of the date when an illegality has been committed, and the ensuing losses for everybody that could or could not be symmetric, lend support to the claim ...


A Technical Barriers To Trade Agreement For Services?, Bernard Hoekman, Petros C. Mavroidis Jan 2015

A Technical Barriers To Trade Agreement For Services?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Services are regulated for a variety of reasons. Regulation is typically influenced by political economy forces and may thus at times reflect protectionist motivations. Similar considerations arise for goods, but the potential for protectionist capture may be greater in services as many sectors are self-regulated by domestic industry. There are specific disciplines on regulation of goods (product standards) in the WTO Agreement on Technical Barriers to Trade (TBT). This encourages the use of international standards and requires that norms restrict trade only to the extent necessary to achieve the regulatory objective. WTO disciplines on domestic regulation of services are weaker ...


Black Cat, White Cat: The Identity Of The Wto Judges, Louise Johannesson, Petros C. Mavroidis Jan 2015

Black Cat, White Cat: The Identity Of The Wto Judges, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

WTO judges are proposed by the WTO Secretariat and elected to act as ‘judges’ if either approved by the parties to a dispute, or by the WTO Director-General in case no agreement between the parties has been possible. They are typically ‘Geneva crowd’, that is, they are either current or former delegates representing their country before the WTO. This observation holds for both first- as well as second-instance WTO judges (e.g. Panelists and members of the Appellate Body). In that, the WTO evidences an attitude strikingly similar to the GATT. Whereas the legal regime has been heavily ‘legalized’, the ...


Competition Policy And Free Trade: Antitrust Provisions In Ptas, Anu Bradford, Tim Buthe Jan 2015

Competition Policy And Free Trade: Antitrust Provisions In Ptas, Anu Bradford, Tim Buthe

Faculty Scholarship

Trade agreements increasingly contain provisions concerning ‘behind-the-border’ barriers to trade, often beyond current World Trade Organization (WTO) commitments (Dur, Baccini and Elsig 2014). Today’s preferential trade agreements (PTAs) may include, for instance, rules regarding ‘technical’ barriers to trade that go beyond the WTO’s Agreement on Technical Barriers to Trade (TBT Agreement), accelerating the replacement of differing national product safety standards with common international standards and thus reducing the trade-inhibiting effect of regulatory measures (Buthe and Mattli 2011; World Trade Organization 2012). Today’s PTAs may also go beyond WTO rules in prohibiting preferences for domestic producers in government ...


Dispute Settlement In The Wto (Mind Over Matter), Petros C. Mavroidis Jan 2015

Dispute Settlement In The Wto (Mind Over Matter), Petros C. Mavroidis

Faculty Scholarship

The WTO Dispute Settlement System aimed to curb unilateralism by establishing a multilateral process operating under the aegis of the WTO as the exclusive forum for WTO adjudication. Intuitively, one would expect that those negatively affected by the curtailing of their power to unilaterally do justice for themselves, would agree to multilateral resolution of disputes if the established regime could guarantee enforcement of obligations in comparable terms (to unilateral enforcement). In this perspective, respect and guarantee of reciprocal commitments is the key ingredient. Reciprocal commitments entered should not be unilaterally undone through the commission of illegalities. There are good reasons ...


Reaching Out For Green Policies: National Environmental Policies In The Wto Legal Order, Petros C. Mavroidis Jan 2014

Reaching Out For Green Policies: National Environmental Policies In The Wto Legal Order, Petros C. Mavroidis

Faculty Scholarship

The WTO does not squarely address the issue of jurisdictional ambit of national policies (affecting trade). And yet, absent some agreement as to what trading nations can and cannot do, the WTO loses much of its effectiveness. In the absence of explicit regulation of the issue in the WTO contract, one would reasonably expect WTO Members to behave in line with the postulates governing allocation of jurisdiction embedded in public international law. WTO practice evidences neither an explicit acceptance nor a refusal of these rules.


The Nordic Model In An International Perspective: The Role Of Ownership, Ronald J. Gilson Jan 2014

The Nordic Model In An International Perspective: The Role Of Ownership, Ronald J. Gilson

Faculty Scholarship

This essay appears in a book entitled the Nordic Corporate Governance Model (Per Lekvall ed. 2014). It presents the Nordic country’s governance pattern as an ownership model, in contrast to the Anglo-Saxon model of dispersed shareholders. An ownership model contemplates an active controlling owner who addresses the agency problem confronting public corporations with dispersed shareholders, and a larger role for minority shareholders and courts in constraining the potential for self-dealing by the controlling owner. The essay concludes by noting the great increase in institutional ownership in the Nordic countries, especially Sweden, and raises the question of the role of ...


A Turquoise Mess: Green Subsidies, Blue Industrial Policy And Renewable Energy: The Case For Redrafting The Subsidies Agreement Of The Wto, Aaron Cosbey, Petros C. Mavroidis Jan 2014

A Turquoise Mess: Green Subsidies, Blue Industrial Policy And Renewable Energy: The Case For Redrafting The Subsidies Agreement Of The Wto, Aaron Cosbey, Petros C. Mavroidis

Faculty Scholarship

Canada-Renewable Energy presented the WTO Panel and Appellate Body (AB) with a novel issue: at the heart of the dispute was a measure adopted by the province of Ontario whereby producers of renewable energy would be paid a premium relative to conventional power producers. Some WTO Members complained that the measure was a prohibited subsidy because payments were conditional upon using Canadian equipment for the production of renewable energy. The AB gave them right only in part: it found that a local content requirement had indeed been imposed, but also found that it lacked evidence to determine whether a subsidy ...


Sultans Of Swing? The Emerging Wto Case Law On Tbt, Carlo M. Cantore, Petros C. Mavroidis Jan 2013

Sultans Of Swing? The Emerging Wto Case Law On Tbt, Carlo M. Cantore, Petros C. Mavroidis

Faculty Scholarship

Following years of silence after EC-Sardines, three cases were adjudicated by Panels under the WTO Agreement on Technical Barriers to Trade (TBT) in 2011: US-Clove Cigarettes, US-Tuna II (Mexico), and US-COOL. These three cases dealt with key provisions of the Agreement, but the Panels adopted irreconcilable approaches. All three decisions were appealed before the Appellate Body (AB), but even the latter failed to apply a coherent methodology to adjudicate similar.

In Section II, we provide a brief account of the facts and the outcomes of the cases, whereas, in Section III we discuss the methodology applied by the WTO judiciary ...


Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis Jan 2013

Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in in WTO dispute settlement. Its distinguishing feature is that it seeks to address this relationship in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO Members, but could be used as sources of factual information.


In The Shadow Of The Dsu: Addressing Specific Trade Concerns In The Wto Sps And Tbt Committees, Henrik Horn, Petros C. Mavroidis, Erik Wijkström Jan 2013

In The Shadow Of The Dsu: Addressing Specific Trade Concerns In The Wto Sps And Tbt Committees, Henrik Horn, Petros C. Mavroidis, Erik Wijkström

Faculty Scholarship

The paper argues that focusing only on disputes formally raised in the WTO Dispute Settlement system underestimates the extent of trade conflict resolution within the WTO. Both the SPS and TBT Committees address a significant number of ‘specific trade concerns’ (STCs) that in the overwhelming majority of cases do not become formal disputes. The STCs address differences between Members concerning the conformity of national measures in the SPS and TBT areas with these agreements. It appears as if Committee work on STCs significantly helps defuse potential trade frictions concerning national policies in the covered areas.


The Legal And Economic Principles Of World Trade Law: National Treatment, Gene M. Grossman, Henrik Horn, Petros C. Mavroidis Jan 2012

The Legal And Economic Principles Of World Trade Law: National Treatment, Gene M. Grossman, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

The primary objective of most trade agreements is to restrain members' use of trade policies for protectionist purposes. But it would be pointless to restrict the application of border instruments without regulating the possible use of domestic policies for protectionist purpose. To this end, most agreements include an obligation for National Treatment (NT) of foreign products. The NT provision in the GATT appears in Art. III, which applies to most government actions that have impact trade. It requires that imported products be treated as favorably by domestic policy as similar, indigenous products. This study offers suggestions based on legal and ...


Antitrust Law In Global Markets, Anu Bradford Jan 2012

Antitrust Law In Global Markets, Anu Bradford

Faculty Scholarship

Multilateral corporations’ activities span across global markets. Yet antitrust laws regulating those activities remain national. Europeans can ban American companies from merging, tell American companies how to design their products, or determine what kind of discounts American companies are permitted to offer to their customers. Chinese can impose conditions on off-shore mergers. And Brazilians can insist on reviewing a transaction with minimal connections to the Brazilian market.


One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis Jan 2012

One (Firm) Is Not Enough: A Legal-Economic Analysis Of Ec-Fasteners, Chad P. Brown, Petros C. Mavroidis

Faculty Scholarship

The WTO’s Appellate Body (AB) dealt with a number of issues for the first time in the Report of EC-Fasteners. Importantly, the AB discussed the consistency of the European Union (EU) regulation with the multilateral rules on the conditions for deviating from the obligation to calculate individual dumping margins. Although China formally won the argument, the AB may have opened the door to treat China as a non-market economy (NME) even beyond 2016 when China’s NME-status was thought to expire under the terms of China’s 2001 WTO Accession Protocol. The AB further dealt with numerous other issues ...


Export Pioneers In Latin America, Charles F. Sabel, Eduardo Fernández-Arias, Ricardo Hausmann, Andrés Rodriguez-Clare Jan 2012

Export Pioneers In Latin America, Charles F. Sabel, Eduardo Fernández-Arias, Ricardo Hausmann, Andrés Rodriguez-Clare

Faculty Scholarship

Export Pioneers in Latin America analyzes a series of case studies of successful new export activities throughout the region to learn how pioneers jump-start a virtuous process leading to economic transformation. The cases of blueberries in Argentina, avocados in Mexico, and aircraft in Brazil illustrate how an initially successful export activity did not stop with the discovery of a single viable product, but rather continued to evolve. The book explores the conjecture that costly burdens to entrepreneurial self-discovery (due to the deterrent effects of imitation by competitors) have held back potential exporters in post-reform Latin America. It also considers the ...


The Brussels Effect, Anu Bradford Jan 2012

The Brussels Effect, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the European Union is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many important aspects of global commerce. The Article identifies the precise conditions for and the specific mechanism through which this externalization of EU ...