International Trade Law Commons^™

Liberal Trade And President Trump: Never The Twain Shall Meet, Joel Adu-Quaye, Petros C. Mavroidis

Faculty Scholarship

This paper seeks to distinguish between two consequences of the tariff policies enacted by both Trump administrations: (1) their adverse effects on free trade and (2) the existential damage inflicted upon the transnational institutions responsible for enforcing its rules and obligations. Although difficult to quantify the latter, there is an intuitive sense that this is what matters most. The global order appears to be shifting from a rule-based framework to one characterized by increasing disorder and unpredictability. Within this new world order, actions are permissible so long as they align with the, often ill-defined, national interests of powerful nations.

Litigating National Security In The Wto Era, Petros C. Mavroidis

Faculty Scholarship

From one dispute between 1948 and 1994, there have now been 14 requests for a panel establishment (based on the General Agreement on Tariffs and Trade (GATT), Article XXI – the exception for national security) during the World Trade Organization (WTO) era (1995–now). The majority of them ended up in the issuance of a panel report, all of which were issued after 5 April 2019. As the WTO Appellate Body has been dysfunctional as of November 2019, no appellate report has been issued. Appeals have been lodged, but as there is no Appellate Body to entertain them, they were lodged …

Trade Integration, Petros C. Mavroidis

Faculty Scholarship

Accounts concerning the world trading system usually start the debate from the negotiation of the GATT. Trade integration before the First World War, though, had been quite remarkable, and the study of this era enriches our understanding of modern institutions in at least two ways. First, a number of GATT provisions had already been shaped during discussions following the advent of the League of Nations. Second, trade integration before the First World War did not manage to put a brake on belligerent behaviour, putting to rest the old Montesquieuan idea of doux commerce. Recent developments (like the invasion of …

Managing The Trade-Climate Policy Interface Through Open Plurilateral Agreements: Learning From The Eu Deforestation Regulation Experience, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

Trade policies motivated by security or commercial interests are increasingly complemented by trade measures that seek to induce foreign producers to green their production processes. A prominent example is the EU Deforestation Regulation (EUDR). Such unilateral measures are unlikely to be efficient, and at the limit may simply be ineffective. In this paper we use the EUDR experience to make the case for countries seeking to use trade policies to negotiate jointly defined approaches to achieve nontrade goals. We consider the scope for doing so in the framework of trade agreements and through stand-alone, issue-specific open plurilateral agreements (OPAs). We …

'Reciprocal' Tariffs: What's In A Word, Petros C. Mavroidis

Faculty Scholarship

On 13 February 2025, President Trump released a memorandum announcing his intention to impose “reciprocal tariffs” under the Fair and Reciprocal Plan (FRP). The plan does not operate under a reasonable definition of reciprocity, is illegal under World Trade Organisation (WTO) law, would damage both the United States and its trading partners and could trigger reactions that would bring an end to the international trading system as we know it.

New Approaches And Challenges Regarding Trade, Climate Action, And The Wto, Sunayana Sasmal

Columbia Center on Sustainable Investment

This report considers how the WTO, as an institution and its rules, can and should be a game-changer in undertaking climate action and the green energy transition globally. By leveraging its toolkit, the WTO has the potential to drive climate action, from regulating border carbon adjustments to promoting trade in green products, green electricity, and dissemination of climate technologies. However, unlocking this potential requires legal reforms, a proactive institutional role, and strong political will from WTO members.

How The European Union Should Respond To Trump's Tariffs, Ignacio García Bercero, Petros C. Mavroidis, André Sapir

Faculty Scholarship

President-elect Trump has threatened to increase United States tariffs to 60 percent on imports from China and 10 percent to 20 percent on imports from other trading partners, including the European Union. In doing so the US would be ignoring its World Trade Organisation commitments and would also rollback the substantial liberalisation that has taken place during the past 80 years, with a potentially major negative impact on the world economy.

In response to this threat, the EU should pursue a three-pronged strategy.

First, the EU should engage bilaterally with the US to seek to avoid the imposition of tariffs. …

Breaking Free: Strategies For Governments On Terminating Investment Treaties And Removing Isds Provisions, Ladan Mehranvar, Martin Dietrich Brauch

Columbia Center on Sustainable Investment

Our report, "Breaking Free: Strategies for Governments on Terminating Investment Treaties and Removing ISDS Provisions," is a guidebook for government officials and policymakers on the reform or exit of the investment treaty regime that is currently impeding climate action and other national and global goals. The report includes the following: (1) strategies for exiting or reforming investment treaties and the legal consequences that follow; (2) eliminating ISDS exposure in national investment laws and contracts; (3) withdrawing from the International Centre for Settlement of Investment Disputes (ICSID) Convention and the minimal legal consequences of such action; (4) examples of country- and …

The National Security Exception At The Wto: Should It Just Be A Matter Of When Members Can Avail Of It? What About How?, Mona Pinchis-Paulsen, Kamal Saggi, Petros C. Mavroidis

Faculty Scholarship

The GATT security exceptions were practically in hibernation until recently. The recent WTO disputes panel activity concerning such exceptions is characterized by a standard of review that places the accent on ‘when’ action should be taken and not so much on ‘what’ action should be taken. We see two problems with this construction. First, the ‘when’ might be a function of privileged information that those possessing it might be unwilling to divulge in a transparent manner. Second, national security is an amorphous concept, and unless we disaggregate it, it is impossible to pronounce the appropriateness of measures adopted to pursue …

Prioritization Of The Draft Provisions On Procedural And Cross-Cutting Issues, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment

Prioritization of the Draft Provisions on Procedural and Cross-Cutting Issues is a joint submission to the Secretariat's request for comments on the prioritization of the draft provisions on procedural and cross-cutting issues. The submission calls for an approach to classification and prioritization that allows Working sufficient time to address issues that are particularly pressing in ISDS reform debates, including, for instance, draft provisions 10 (shareholder claims), 12 (right to regulate), and 23 (assessment of damages and compensation).

Green Public Procurement: How To Fulfill The Promise Of Decarbonizing The Hard-To-Abate Sectors, Laura Garcia Cancino, Perrine Toledano, Ingrid Zhou

Columbia Center on Sustainable Investment

Public procurement represents a significant segment of the global economy, accounting for approximately 12% of the global GDP, according to a World Bank's 2020 report. Moreover, steel and cement are among the most carbon-intensive commodities, contributing about 14-16% of global energy-related CO2 emissions. Our latest publication under the COMET initiative, Green Public Procurement: How to Fulfill the Promise of Decarbonizing the Hard-to-Abate Sectors, analyzes Green Public Procurement (GPP) and its pivotal role in decarbonizing hard-to-abate sectors like steel manufacturing.

This comprehensive study delves into how governments can use their extensive purchasing power to shift market dynamics towards low-carbon alternatives, effectively …

Government Procurement, Financial Services, And Environment: Linkages And Implications For The Eu And Brazil, Adeet Dobhal, Lucas Moreira Jiminez

Columbia Center on Sustainable Investment

The relationship between trade and the environment is increasingly a priority for policymakers and civil society. However, some of the disciplines covered by modern trade agreements have not received enough attention when it comes to their potential impact on the environment. Financial services and government procurement are two such areas, even though they are increasingly consequential topics for international trade policy and negotiations. This blind spot merits greater consideration as the connections definitely exist: the regulation of government procurement and financial services can have positive or negative implications for environmental outcomes on the ground, which makes understanding these links a …

How The International Investment Law Regime Undermines Access To Justice For Investment-Affected Stakeholders, Ladan Mehranvar

Columbia Center on Sustainable Investment

For over a decade now, the international investment law regime, which includes investment treaties and their central pillar, the investor-state dispute settlement (ISDS) mechanism, has been facing sustained calls for reform. These have largely centered on the concerns regarding the high costs of ISDS, the restrictions placed by the investment treaty regime on the right—or duty—of states to regulate in the public interest, and the questionable benefits arising from these treaties in the first place. Several states have taken proactive measures: some have revised investment treaty standards to better protect their regulatory powers; others have introduced new approaches to investment …

Uncitral Working Group Iii: Contribution On The ‘Right To Regulate’ Provision, Columbia Center On Sustainable Investment, International Institute For Environment And Development, South Centre

Columbia Center on Sustainable Investment

"UNCITRAL Working Group III: Contribution on the ‘Right to Regulate’ Provision" is a joint submission to the Secretariat's request for comments on the procedural and cross-cutting issues. The commentary focuses on the states' right-to-regulate provision, proposed in the Draft provisions on procedural and cross-cutting issues, and proposes additional policy options aimed at preserving the states' sovereign right (and duty) to regulate.

The Role And Relevance Of Investment Treaties In Promoting Renewable Energy Investments, Ladan Mehranvar, Lisa E. Sachs

Columbia Center on Sustainable Investment

Co-authors Ladan Mehranvar and Lisa Sachs discuss the effect of investment treaties as catalysts for critical investments in the energy transition, with a particular focus on the Spanish renewable energy cases. The book chapter, "The Role and Relevance of Investment Treaties in Promoting Renewable Energy Investments," is featured in Investment Arbitration and Climate Change, published by Kluwer Law International B.V.

The Wto Dsu 2.0: How Can We Go Back To The Future?, Aris Georgopoulos, Petros C. Mavroidis

Faculty Scholarship

In this chapter, Aris Georgopoulos and Petros Mavroidis examine the contribution of the WTO dispute settlement body to the resolution of trade disputes. This chapter documents the problems and challenges faced by the WTO’s dispute settlement body and reveals their debilitating impact on its work. This chapter then puts forward concrete proposals for the establishment of a new WTO Court and explains why such a course of action has a realistic chance of breaking the current impasse and creating an effective dispute settlement body for trade disputes.

Turning The Tide: How To Harness The Americas Partnership For Economic Prosperity To Deliver An Isds-Free Americas, Daniel Rangel, Lori Wallach, Ladan Mehranvar, Alvaro Santos, Mario Osorio

Columbia Center on Sustainable Investment

During the Summit of the Americas in June 2022, U.S. President Joe Biden announced the launch of negotiations for an Americas Partnership for Economic Prosperity (APEP). The Biden administration hopes this initiative can rebuild relationships with countries in the region by increasing cooperation to address economic development and inequality, climate, and other challenges affecting the entire Western Hemisphere. To fulfill this vision and its associated goals, the participating countries must address the severe challenges posed by the investor-state dispute settlement (ISDS) regime and its escalating threats to the transition to a post-carbon society and the establishment of resilient public health …

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 …

The Role Of Investor-State Tribunals In Determining The Scope And Content Of The Fair And Equitable Treatment Standard – Legitimate Expectations And Proportionality, Simon Bianchi

LL.M. Essays & Theses

In recent years, the legitimacy of the investor-State dispute settlement (“ISDS”) has been called into question and several initiatives, such as the UNCITRAL Working Group III, are currently looking at various ways to enhance such legitimacy and ensure the sustainability of ISDS. In this respect, certain scholars like Professors Sornarajah and van Harten claim that the interpretative process undertaken by investor-State tribunals has contributed to this legitimacy crisis among others because the application of vague standards, such as fair and equitable treatment (“FET”), involves applying subjective notions of what adjudicators perceive as desirable developments of investment law. By contrast, other …

Consensus Decision-Making And Legislative Inertia At The Wto: Can International Law Help?, Americo B. Zampetti, Patrick Low, Petros C. Mavroidis

Faculty Scholarship

The recent emergence of Joint Statement Initiatives (JSIs) – that is, negotiating initiatives among a subset of the World Trade Organization (WTO) membership – has reignited the debate over law-making in the WTO. As things stand, the WTO operates on the basis of a widespread expectation that consensus needs to be achieved for any decision to be taken. Agreements that produce rights and obligations only among a subset of the membership (‘plurilaterals’, or Annex 4 agreements) are also subject to the consensus rule and thus remain exceptional. Are JSIs the first move towards redressing the current equilibrium in favour of …

Investor-State Dispute Prevention: A Critical Reflection, Lise Johnson, Lisa E. Sachs, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

With the rise of treaty-based investor-state dispute settlement (“ISDS”) which has taken place over the last two decades, a number of governments have adopted varying approaches to avoid those arbitration cases. Countries including Bosnia and Herzegovina, Colombia, Mexico, Mongolia, and Peru have pursued such initiatives, often with the support of intergovernmental organizations such as the United Nations Convention on Trade and Development (“UNCTAD”) and the World Bank.

In the context of discussions on ISDS reform taking place at the United Nations Commission on International Trade Law (“UNCITRAL”), some states have identified development and implementation of such ISDS-avoidance strategies and tools …

Comments To The Draft Working Group Iii Workplan, Columbia Center On Sustainable Investment, International Institute For Environment And Development, International Institute For Sustainable Development

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

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 …

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …

Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

Trading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of …

Plurilateral Cooperation As An Alternative To Trade Agreements: Innovating One Domain At A Time, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters …

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing …

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.

Modern Provisions In Investment Treaties, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Governments are pursuing substantive and procedural reform of the international investment regime in recognition that there are fundamental, systemic, and interrelated concerns about current approaches to investment governance, and that current approaches have failed to meet their purported objectives.

A vast majority of the 1,023 publicly-known treaty-based claims have been brought under “old-generation” treaties. In 2018, for example, 60% of such claims were brought under treaties originally concluded in the 1990s or earlier, and all but one was filed under a pre-2011 treaty. These old-generation treaties include vague and far-reaching obligations for states, generally do not include any reference to …