Trade Agreements at the Crossroads

280 Pages·2013·2.33 MB·English

by  Susy Frankel

Trade Agreements at the Crossroads
This book examines trade agreements in the context of the current world eco-
nomic crisis and the uncompleted World Trade Organization (WTO) Doha
Round of trade negotiations. With economies shrinking and protectionism on the
rise, many fear a protracted global recession. This raises important questions as
to what role trade agreements – multilateral, plurilateral, and bilateral – should
be playing in the current climate of uncertainty, and how best to plan for a more
stable economic future. Previous assumptions are now being questioned, making
this an opportune time to critically examine the WTO, free trade agreements,
bilateral investment treaties, and other international economic law instruments.
Furthermore, participants in international agreements are concerned with emerg-
ing issues that have the potential to strengthen or weaken the global trading
system, including matters of treaty interpretation; terms of new agreements; and
effects of existing provisions.
This book provides a timely addition to the international economic law liter-
ature, as its submissions have been prepared during a time of unusual uncertainty
and economic change; individuals interested in international economic law will
seek scholarship such at this that recognizes the current international economic
climate. This book should be of interest to a wide range of academics and
student researchers, as well as policymakers and practitioners.
Susy Frankel is Professor at the Faculty of Law, Victoria University of Wel-
lington and Director of the New Zealand Centre of International Economic Law.
Meredith Kolsky Lewis is Associate Professor and Director of the Canada–US
Legal Studies Centre at the SUNY Buffalo Law School, Associate Professor at
the Victoria University of Wellington Faculty of Law and Associate Director of
the New Zealand Centre of International Economic Law.
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Trade Agreements at the
Crossroads
Edited by Susy Frankel and
Meredith Kolsky Lewis
First published 2014
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2014 Susy Frankel and Meredith Kolsky Lewis, selection and editorial
matter; contributors their contributions
The right of Susy Frankel and Meredith Kolsky Lewis to be identified as
the authors of the editorial material, and of the authors for their individual
chapters, has been asserted in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Trade agreements at the crossroads / edited by Susy Frankel, Meredith Lewis.
pages cm
Includes bibliographical references and index.
1. Commercial treaties. 2. International economic relations. 3. World
Trade Organization. 4. Doha Development Agenda (2001–) 5. Global
Financial Crisis, 2008–2009. I. Frankel, Susy. II. Lewis, Meredith
Kolsky.
HF1721.T687 2013
382'.92 -dc23
2013019798
ISBN: 978-0-415-63525-7 (hbk)
ISBN: 978-1-315-86772-4 (ebk)
Typeset in Times New Roman
by Wearset Ltd, Boldon, Tyne and Wear
Contents
List of contributors vii
Introduction 1
PArT I
Trade agreements and dispute settlement 7
1 What to do when disagreement strikes?: the complexity of
dispute settlement under trade agreements 9
MEREDITH KOLSKY LEWIS AND PETER VAN DEN BOSSCHE
2 Expanding the trade litigator’s toolkit: developing tools to
achieve effective and legitimate resolution of disputes under
PACEr Plus and other trade agreements 26
IAIN SANDFORD
3 Exploring the differences between WTO and investment
treaty dispute resolution 46
DANIEL KALDERIMIS
4 The WTO standard of review: a means to strengthen the
trading system 66
ROSS BECROFT
vi Contents
PArT II
Trade agreements in the modern era: a focus on the
Asia-­Pacific­ 81
5 Market access: an institutional challenge to China 83
XIANCHU ZHANG
6 China’s regionalism: working towards a regional
comprehensive economic partnership? 99
RAFAEL LEAL- ARCAS
­7­ Asia-­Pacific­regional­architecture­and­consumer­product­
safety regulation beyond Free Trade Agreements 114
LUKE NOTTAGE
PArT III
Evolving trade agreement dynamics: challenging
established concepts 139
8 regulatory cooperation and Free Trade Agreements 141
TRACEY EPPS
9 Implementation and monitoring of process and production
methods 167
SOFYA MATTEOTTI AND OLGA NARTOVA
10 The International Law Commission work on MFN clauses –
a worthwhile venture 188
KEVIN R. GRAY
11 The TrIPS Agreement and cross- retaliation 208
SUSY FRANKEL
Bibliography 226
Index 261
Contributors
ross Becroft is a principal of Gross & Becroft Lawyers in Melbourne, Aus-
tralia. He is also a sessional academic at Melbourne Law School.
Peter Van den Bossche is Member of World Trade Organization Appellate Body,
Professor of International Economic Law and Head of the Department of Inter-
national and European Law at Maastricht University, the Netherlands.
Tracey Epps is Senior Trade Law Advisor, New Zealand Ministry of Foreign
Affairs and Trade and part-time Senior Lecturer in the Faculty of Law, Uni-
versity of Otago.
Susy Frankel is a professor at the Faculty of Law, Victoria University of Wel-
lington and Director of the New Zealand Centre of International Economic
Law.
Kevin r. Gray is Counsel at the Trade Law Bureau, Government of Canada and
Doctoral Candidate at the University of Ottawa, Faculty of Law.
Daniel Kalderimis is a partner at Chapman Tripp, Wellington, New Zealand.
Meredith Kolsky Lewis is Associate Professor and Director of the Canada–US
Legal Studies Centre at the SUNY Buffalo Law School, Associate Professor
at the Victoria University of Wellington Faculty of Law and Associate Dir-
ector of the New Zealand Centre of International Economic Law.
rafael Leal-A rcas is Senior Lecturer in Law at the Queen Mary University of
London.
Sofya Matteotti is a research fellow at the World Trade Institute, Bern,
Switzerland.
Olga Nartova is a research fellow at the World Trade Institute, Bern, Switzer-
land and Assistant Professor at DAH School of Law.
Luke Nottage is Professor of Comparative and International Business Law and
Associate Dean (International) at University of Sydney Law School, Co-
Director of the Australian Network for Japanese Law.
viii Contributors
Iain Sandford is Counsel at Sidley Austin LLP, geneva, Switzerland.
Xianchu Zhang is Professor of Law and Associate Dean, University of hong
Kong, Faculty of Law.
Introduction
The twenty- first century has thus far been marked by a global economic reces-
sion. Points of crisis can be isolated and aspects of recovery pinpointed;
however, overall recession continues and many economies remain fragile. There
is no shortage of theories and arguments as to why the recession has occurred.
There has been, however, a shortage of agreed solutions as to how to bring
recession to an end and spur economic growth. Multilateral or global initiatives
to accomplish this goal have been thin on the ground. In particular, the World
Trade Organization (WTO) Doha Round of trade negotiations remains mori-
bund. At the same time, free trade agreements (FTAs) and bilateral investment
treaties (BITs) have continued to proliferate, creating concerns over fragmenta-
tion and overlapping, potentially inconsistent, commitments. The combination of
the global financial crisis, the lack of progress in the Doha Round, and the ever
increasing number and variety of FTAs has created both a time of uncertainty
and a heightened focus in international economic law scholarship on the implica-
tions of the issues creating this uncertainty. It is in this context that this book of
essays is set. The issues discussed in this collection have been inspired by the
current world economic and international trade and investment challenges, but
the authors also focus in a forward- looking manner which will have enduring
importance long after the current recession is behind us. To be sure, global reces-
sion and the stalling of multilateral negotiations tend to raise questions about the
role of trade agreements – multilateral, plurilateral and bilateral – and what they
might achieve in a climate of uncertainty characterised by a need to manage risk
of many kinds, but such questions are also relevant in wealthier times. Regard-
less, the current economic crisis has sparked much scholarly interest and debate
regarding these issues.
Since the formation of the WTO there has been a proliferation of non-
multilateral trade agreements. All agree that this has created a changed situation.
Some WTO members consider that they have had to turn to non- multilateral
trade fora in order to make any meaningful progress. Others consider that the
investment of resources in bilateral and plurilateral agreements ensures that the
multilateral talks remain ineffective and cannot progress. In the face of these ten-
sions certain theories arise about the future. One which draws on the history of
previous multilateral trade rounds suggests that plurilateralism might carve a