International Trade Law Commons^™

Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of …

Asean Financial Integration And The Belt And Road Initiative: Legal Challenges And Opportunities For China In Southeast Asia, Christopher C. H. Chen

Research Collection Yong Pung How School Of Law

This chapter explores the legal challenges to Chinese financial institutions in Southeast Asia against the backdrop of China’s grand ‘Belt and Road Initiative’ (BRI) and the establishment of the Association of Southeast Asian Nations (ASEAN) Economic Community. Banking and finance play important roles in promoting trade, investment and infrastructure projects. The development of ASEAN, an immense economic bloc located immediately south of China, will have an enormous effect on the BRI strategy. This chapter outlines the current development of financial integration within ASEAN with respect to the bloc’s banking and insurance sectors. It also considers the legal obstacles and potential …

Dictum On Dicta: Obiter Dicta In Wto Disputes, Henry S. Gao

Research Collection Yong Pung How School Of Law

This paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate …

How May China Respond To The U.S. Trade Approach? Retaliatory, Inclusive And Regulatory Responses, Heng Wang

Research Collection Yong Pung How School Of Law

This paper endeavours to conceptualize and provide an analytical framework for China’s response to U.S. trade policy. It analyses the following questions: what is the new U.S. trade approach? How might China respond to the United States’ trade approach? What are the trend and implications of China’s response to the U.S. trade approach? It argues, first, that the U.S. trade approach has not changed regarding most of the U.S.-style regulatory disciplines. However, it has changed in terms of the shift toward managed trade, unilateralism and trade enforcement. Second, China will likely adopt a three-track approach: consisting of retaliatory, inclusive and …

Digital Or Trade? The Contrasting Approaches Of China And Us To Digital Trade, Henry S. Gao

Research Collection Yong Pung How School Of Law

With the growing importance of the internet, digital trade, or electronic commerce, has become a key issue in international trade regulation. As the home to some of the largest internet companies in the world, the United States took the lead in bringing the issue into the WTO and has been the leading proponent on the issue. In contrast, the developing countries were quite sceptical and reluctant to engage on discussions on the issue. Recently, however, several developing countries has changed their positions and become more active participants. Chief among them is China, which has raised some interesting proposals both within …

Global Reform Of Investor-State Arbitration: A Tentative Roadmap Of China’S Emergent Equilibrium, Mark Mclaughlin

Research Collection Yong Pung How School Of Law

Investor-State arbitration is in a state of flux. In recent years, doubts about its adequacy have become apparent: questions of coherence, consistency, legitimacy, and utility have rendered fragile the central place of investor-State arbitration in global foreign direct investment (FDI) governance. Three threads of reform have been advanced as a corrective to these deficiencies, encompassing incremental reform, institutional reform, and fundamental reform. China is perhaps the most influential nation not to have declared a preference for one future or another. For over a decade, the Chinese approach to investor-State arbitration has been in a state of disequilibrium: bilateral investment treaties …

The Wto Transparency Obligations And China, Henry S. Gao

Research Collection Yong Pung How School Of Law

When it acceded to the WTO in 2001, China accepted comprehensive transparency obligations as well as substantive commitments covering both market access and rules issues. Initially designed to deal with its opaque trade law regime, the transparency obligations were also expected to help democratize the legislative process and promote the development of the rule of law in China. Now that more than 15 years have passed, an important question is: have the transparency obligations delivered on their original promise? This article answers the question by reviewing how the transparency obligations have worked in practice. It notes that, while transparency has …

Regulation Of Digital Trade In Us Free Trade Agreements: From Trade Regulation To Digital Regulation, Henry S. Gao

Research Collection Yong Pung How School Of Law

This article reviews the evolution of rules on digital trade in US Free Trade Agreements (US FTAs), and argues that the US approach has shifted from treating it largely as a traditional trade issue to recognizing its unique digital nature and tailoring the rules accordingly, as it has done in the Trans-Pacific Partnership (TPP) Agreement. The article begins with a review of the efforts to regulate e-commerce in the WTO, as well as the achievements of the pre-TPP US FTAs so far, followed by a critical appraisal of the strengths and weaknesses of the e-commerce chapter in the TPP. It …

The Wto Transparency Obligations And China, Henry S. Gao

Research Collection Yong Pung How School Of Law

When it acceded to the WTO in 2001, China accepted comprehensive transparency obligations as well as substantive commitments covering both market access and rules issues. Initially designed to deal with its opaque trade law regime, the transparency obligations were also expected to help democratize the legislative process and promote the development of the rule of law in China. Now that more than 15 years have passed, an important question is: have the transparency obligations delivered on their original promise? This article answers the question by reviewing how the transparency obligations have worked in practice. It notes that, while transparency has …

Regulation Of Digital Trade In Us Free Trade Agreements: From Trade Regulation To Digital Regulation, Henry S. Gao

Research Collection Yong Pung How School Of Law

This article reviews the evolution of rules on digital trade in US Free Trade Agreements (US FTAs), and argues that the US approach has shifted from treating it largely as a traditional trade issue to recognizing its unique digital nature and tailoring the rules accordingly, as it has done in the Trans-Pacific Partnership (TPP) Agreement. The article begins with a review of the efforts to regulate e-commerce in the WTO, as well as the achievements of the pre-TPP US FTAs so far, followed by a critical appraisal of the strengths and weaknesses of the e-commerce chapter in the TPP. It …

The Wto Practice Of Legality Is Ensuring Transparency Forself-Enforcing Trade, Abdulmalik Mousa S Altamimi

Research Collection Yong Pung How School Of Law

Purpose One of the core objectives of the World Trade Organisation (WTO) is to maintain a practice of legality, including guaranteeing state and non-state actors interact based on the world trade norms. In seeking to achieve this objective, the WTO aims to uphold the trade rule of law by emphasising compliance with specified rules and procedures during the accession process, dispute settlement and trade policy review. This study aims to review these compliance procedures by invoking the interactional international law concept of a community of legal practice. Second, it briefly illuminates Chad Bown's proposal to establish an institute for assessing …

China’S Rise: How It Took On The U.S. At The Wto, Greg Shaffer, Henry S. Gao

Research Collection Yong Pung How School Of Law

This Article builds from original fieldwork to show what lies behind China’s remarkably successful use of international trade law to take on the United States and Europe. The World Trade Organization (“WTO”) is unique in China’s international relations as it is the only forum where China, with its anti-legalist traditions, has resolved its disputes through law and the use of third-party dispute settlement. After China acceded to the WTO in 2001, it invested massively in building trade law capacity to transform itself and defend itself externally. Through these investments and its increased market power, China became a serious rival to …

An Assessment Of The Chafta And Its Implications: A Work-In-Progress Type Fta With Selective Innovations, Heng Wang

Research Collection Yong Pung How School Of Law

This chapter explores two questions of the recent China-Australia FTA (ChAFTA): what is the approach of the ChAFTA? What are the challenges to the ChAFTA? It argues first that the ChAFTA adopts a problem-solving approach to harvest “low-hanging fruit” (e.g. tariff cuts). Containing WTO-based and WTO-friendly rules, it focuses on trade and investment facilitation through market liberalization and carefully written good governance norms. In spite of its short form investment chapter, the agreement is not as shallow as one may first think. It stimulates development concerning, among other things, regulatory issues (e.g. regulatory transparency and cooperation in financial services, regulatory …

Independence And Impartiality Of Arbitrators: A Rule Of Law Analysis, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

Investor-State dispute settlement (ISDS) through arbitration remains in a state of legitimacy crisis and discussions on reform are ongoing. Much of the criticism is focussed on who is deciding investment dispute cases. Investment arbitrators have been called “private judges” who operate in secrecy, are biased in favour of big multinational companies and have no regard for conflicts of interest. The course of the negotiations on the Transatlantic Trade and Investment Partnership between the European Union (EU) and the United States, highlighted to what extent ISDS through arbitration is perceived as unfair and biased (at least in Europe). As a reaction …

The Rcep: New Asian Regionalism And The Global South, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article provides an up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. By analyzing the converging policies of the Association of Southeast Asian Nations (ASEAN), China and India, the article first demonstrates the status of …

International Investment Arbitration In Laos: Large Issues For A Small State, Romesh Weeramantry, Mahdev Mohan

Research Collection Yong Pung How School Of Law

Laos is no stranger to international investment arbitration. Despite its status as one of Southeast Asia's least developed countries, it has had an Investment Law for more than two decades and is also a party to several bilateral and Association of South East Asian Nations (ASEAN)-related investment agreements. More recently, two investment treaty claims have been made against it, one of which has given rise to an award challenge that went all the way to Singapore's highest court. This article will examine the history, evolution and current iteration of Laos' relationship with international investment law and focus on the two …

The 2016 Amendments To Singapore’S Consumer Protection (Fair Trading) Act: A Missed Opportunity, Wee Ling Loo, Ee-Ing Ong

Research Collection Yong Pung How School Of Law

Singapore hasrecently amended its Consumer Protection (Fair Trading) Act in response to calls for tougher action against unscrupulous traders. The revisions were aimed at strengthening the government’s ability to deter and punish errant traders, witha focus on deterrence. To this end, the government introduced new investigatory powers, enhanced court powers and added one substantive consumer remedy. Despite this, the authors argue that Singapore’s consumer protection regime remains inadequate because: unfair practices have yet to attract criminalsanctions; no guidelines were issued to provide transparency and clarity on how the broad investigatory powers and harsher court powers are to be implemented; no …

The Rcep And Its Investment Rules: Learning From Past Chinese Ftas, Heng Wang

Research Collection Yong Pung How School Of Law

China’s free trade agreements (FTAs) reveal malleability as the most striking feature. The paper analyzes the following questions: what is the trend of China’s fta approach to investment concerning malleability? Is China a rule follower, shaker or maker? How may China approach the Regional Comprehensive Economic Partnership (RCEP) regarding investment? It argues first that the malleability will probably expand from investment protection to investment liberalization. China converges with deep ftas regarding investment protection and may incrementally move to investment liberalization. Second, increased malleability of China’s ftas exists in regulatory autonomy and investor-state dispute settlement. Third, China is likely to be …

Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen

Research Collection Yong Pung How School Of Law

This article examines the legal implications of the interconnections of the global derivatives market, such as the exchange and over-the-counter (OTC) markets, in East and Southeast Asia. First, we introduce the interconnectedness of the global derivatives market. We then examine some legal implications of such interconnectedness from several angles, such as the extraterritoriality of relevant regulations (notably the reporting, clearing and trading mandates prescribed by the G20 and the new initial margin rule), standard product documentation, the effect of substituted compliance, the potential competition effect due to shifting OTC trades to exchange trading and the effect of consolidating exchanges and/or …

The Role And Future Of Sovereign Wealth Funds: A Trade And Investment Perspective, Locknie Hsu

Research Collection Yong Pung How School Of Law

Sovereign wealth funds ("SWFs") have been greeted with bothenthusiasm and suspicion. In one respect, they have been called "white knights," where they step in to inject financing to troubledentities.' In others, they have been called "Trojan horses" and"chameleons."

Demand Side Of Corruption And Foreign Investment Law, Austin Ignatius Pulle

Research Collection Yong Pung How School Of Law

The United Nations Conventionagainst Corruption, regional anti-corruption conventions, the US ForeignCorrupt Practices Act, and laws against foreign bribery passed pursuant to theOECD Convention on Bribery have not operated to substantially reduce foreigncorrupt practices. The “design flaw” in these instruments and laws is that theyabandon the model of domestic anti-bribery laws that target both the supply anddemand side of corruption, and instead focus only on the supply side ofcorruption. Shielded from international accountability, corrupt officials inthe demand side continue to extort bribes from investors and other businessmenwho wish to operate in their countries. Arbitration decisions that considercorruption in the context of …

The Asian Perspective On Smes In International Economic Law: Opportunities And Challenges Arising From The Tpp, Heng Wang

Research Collection Yong Pung How School Of Law

The Trans-Pacific Partnership (TPP) is likely to have profound implications for small and medium-sized enterprises (SMEs) within and beyond the free trade area. The key question will be analysed: what are the challenges and opportunities that the TPP hold for SMEs? It is argued that, first, the key benefits the TPP can be expected to bring for SMEs are enhanced market liberalization and a more predictable regulatory environment. Second, the TPP poses serious challenges for SMEs (eg insufficiency of the opportunities to SMEs, the complexity of rules, difficulties in rule interpretation and implementation, and remaining regulatory differences), but different types …

Can Wto Law Keep Up With The Internet?, Henry Gao

Research Collection Yong Pung How School Of Law

The regulation of Internet activities presents special challenges to the World Trade Organization (WTO), as its rules were mostly formulated in the pre-Internet era. The first difficulty lies in determining whether Internet activities should be classified as goods or services, as they are subject to different regulatory frameworks. Traditionally, the General Agreement on Tariffs and Trade (GATT) only applies to goods. It was not until the establishment of the WTO in 1995 that services trade was finally brought within the scope of the multilateral trading system. While some activities, such as the online delivery of books and audiovisual products could …

China: Rule-Taker, Rule-Shaker Or Rule-Maker?, Singapore Management University

Research@SMU: Connecting the Dots

Despite its ascent on the world stage, Professor Henry Gao’s research shows that China may prefer to keep a low profile in global organisations.

See his papers:

• Selected issues in TPP negotiations and implications for China
• China's ascent in global trade governance: From rule taker to rule shaker and, maybe rule maker?
• Saving the WTO from the risk of irrelevance

The Eu As A Global Actor In Reforming The International Investment Regime In Light Of Sustainable Development, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The international investment law regime is undergoing a process of reform. The guiding paradigm of this reform is the principle of sustainable development. The EU, through its exclusive competence over foreign direct investment, has become a significant actor on the stage of international investment law governance. According to recent statements of the EU institutions, the EU seeks to shape its policy to be consistent with the principle of sustainable development. In more concrete terms this means that EU investment law making shall be consistent with core labour standards, environmental protection and the conservation of natural resources as well as with …

The 'Africanization' Of International Investment Law: The Pan-African Investment Code And The Reform Of The International Investment Regime, Makane Moïse Mbengue, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The Pan-African Investment Code (PAIC) is the first continent-wide African model investment treaty elaborated under the auspices of the African Union. The PAIC has been drafted from the perspective of developing and least-developed countries with a view to promote sustainable development. The PAIC contains a number of Africa-specific and innovative features, which presumably makes it today a unique legal instrument. Written in a time where the international investment community is still debating the future of international investment law, this article seeks to present and contextualize this first African model investment treaty. The article highlights the most innovative features of the …

The Investment Protection Chapter Of The Eu-Singapore Free Trade Agreement: A Model For The Post-Brexit Uk Iias, Siraj Shaik Aziz

Research Collection Yong Pung How School Of Law

The impending British exit (Brexit) from the European Union has placed the UK's investment policy at a crossroads. A post-Brexit UK will now have to reorganise its investment relationships with its economic partners through bespoke UK IIAs. This exercise will have to accommodate the shifting Zeitgeist concerning the balance of investors' rights and the right to regulate IIAs that is expected. This paper examines the continued relevance of the recently minted Investment Protection Chapter in the EU-Singapore Free Trade Agreement, acknowledged by Britain's power brokers, as a persuasive model for the UK to emulate for this purpose. This is notwithstanding …

The Tpp: Threat Or Treat To China, Henry S. Gao

Research Collection Yong Pung How School Of Law

The conclusion of the TPP has raised many challenges for China, especially on rules issues. This article discusses the possible responses by China, as well as how this may lead to a window of opportunity for mutual cooperation between the US and China.

The Tpp: Threat Or Treat To China, Henry S. Gao

Research Collection Yong Pung How School Of Law

The conclusion of the TPP has raised many challenges for China, especially on rules issues. This article discusses the possible responses by China, as well as how this may lead to a window of opportunity for mutual cooperation between the US and China.

Tpp, Ceta And Ttip Between Innovation And Consolidation-Resolving Investor-State Disputes Under Mega-Regionals, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The United States concluded in 2015, the Trans-Pacific Partnership (TPP) agreement with 11 other countries and the European Union (EU) concluded a revised version of the Comprehensive Economic Trade Agreement (CETA) with Canada in 2016. The provisions on investor-state dispute settlement (ISDS) of the two agreements could not be more different. While the TPP sticks to the traditional system of investor-state arbitration, CETA now contains a two-layered court system with pre-elected tribunal members. The present contribution seeks to analyse the convergences and differences between the two first concluded mega-regionals in greater detail with a special focus on the CETA court …