Bryan Christopher Mercurio

Why compensation cannot replace trade retaliation in the WTO Dispute Settlement Understanding

Throughout the course of the DSU Review, Members and commentators alike have proposed numerous modifications to the WTO DSU covering a wide range of areas. One area which has received quite a bit of attention is that of retaliatory measures in the implementation phase of the dispute settlement process. This article does not attempt to recap the debate over the appropriateness of trade retaliation or even to discuss all potential amendments targeting this issue. It does, however, identify some of the key criticisms of trade retaliation before analyzing and evaluating the worthiness of trade and/or financial compensation as an alternative. The article finds that neither trade nor financial compensation will do much to resolve the prominent criticisms of trade retaliation while also finding both options would add several uncertainties to the system and, far from increasing compliance with the rulings and recommendations of the DSB, could in fact increase the instances of non-compliance.

International investment agreements and public health: neutralizing a threat through treaty drafting

The high profile investment claims filed by Philip Morris challenging Uruguayan and Australian measures that restrict advertising and logos on tobacco packaging awakened the public health community to the existence and potential detrimental impact of international investment agreements (IIAs). More recently, Eli Lilly challenged Canadas invalidation of a pharmaceutical patent under an IIA. All of the cases claim that the intellectual property rights of the investor were infringed. As a result of these cases, many commentators and activists view IIAs as a threat to public health and have lobbied against their inclusion in ongoing trade negotiations. This article does not argue against IIAs. Instead, it seeks to demonstrate how more sophisticated treaty drafting can neutralize the threat to public health. In this regard, the article seeks to engage members of the public health community as campaigners not against IIAs but as advocates of better treaty drafting to ensure that IIAs do not infringe upon the right of a nation to take non-discriminatory measures for the promotion and protection of the health of their populations.

Bilateral and regional trade agreements : case studies

Notes on contributors Acknowledgments Table of common abbreviations Table of cases Table of treaties and international agreements 1. The Australia-United States Free Trade Agreement Andrew D. Mitchell and Tania Voon 2. Central American-Dominican Republic-United States Free Trade Agreement Mauricio Salas 3. China-Chile Free Trade Agreement Luz Sosa 4. European Union-Mexico Economic Partnership, Political Co-ordination and Co-operation Agreement Bradly J. Condon 5. European Free Trade Association-Southern African Customs Union Free trade Agreement Nkululeko Khumal and Peter Draper 6. Japan-Mexico Economic Partnership Agreement Bryan Mercurio 7. United States-Morocco Free Trade Agreement Jason Kearns 8. Association of Southeast Asian Nations-China Free Trade Agreements Jiangyu Wang.

‘Seizing’ Pharmaceuticals in Transit: Analysing the WTO Dispute that Wasn’t

Several recent detentions of generic pharmaceutical products transiting through the European Union (EU) for suspected infringements of intellectual property rights raised serious concerns for public health advocates and threatened to expose systemic problems existing in the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The detentions not only garnered international attention, but India and Brazil formally began WTO dispute settlement proceedings against the EU. The parties recently reached a mutually agreed solution to the matter and the proceedings have been halted, leaving unanswered the complex legal and technical questions raised by the detentions of pharmaceuticals in transit. Despite a solution being reached in this dispute, the matter will undoubtedly resurface in the near future for a number of reasons. For instance, the EU is attempting to export its laws to its trading partners through the negotiation of free trade agreements and in other forums such as the recently concluded Anti-Counterfeiting Trade Agreement which increases the likelihood that similar detentions will occur at some point in the future. Moreover, recent trends in international intellectual property law indicate a move towards increased protection and enforcement in at least the short and medium term. The issue therefore offers the opportunity for rich legal analysis into an under-explored, yet increasingly important, aspect of the WTO law.

Transitioning to Intellectual Property: How Can the WTO Integrate Least-Developed Countries into TRIPS?

Despite the looming expiration of the extended transition period under Article 66.1 of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) on 1 July 2013, most least-developed countries (LDCs) have not made significant progress in implementing the TRIPS Agreement. WTO Members have accepted this reality and are currently considering another extension of the transition period. In the coming months, the discussions in the TRIPS Council on how to meaningfully integrate the poorest countries into the international system for the protection of intellectual property will intensify. This working paper seeks to assist these discussions by first providing a comprehensive legal analysis of the various rights and obligations for LDCs, developed country Members and international organizations under the transitional arrangements in the TRIPS Agreement, subsequent WTO legislation and in particular the TRIPS Council Decision of 2005. Next, the authors identify several major shortcomings in the priority needs assessment process as set out in the TRIPS Council Decision of 2005 and argue that there is a strong need for greater coordination on the national and multilateral level in order to unlock increased technical and financial assistance for LDCs. The working paper then concludes that an unconditional second extension of the transition period would be detrimental to LDC’s implementation of TRIPS and might also undermine the credibility of the entire multilateral IP regime. Instead, the authors propose a variety of alternative avenues to more successfully integrate LDCs into the international IP system.

Bilateral and Regional Trade Agreements in Asia: A Skeptic’s View

While some commentators credit bilateral and regional free trade agreements (RTAs) for increasing regional trade and per capita GDP in Asia, this chapter contends that the role of RTAs in expanding regional trade in Asia has been overstated and exaggerated. Put simply, this chapter demonstrates that while it is true that the growth of RTAs occurred in the same time period as increased regional trade and per capita GDP growth, there is no significant causal relationship between the events. Taken further, this chapter asserts that intra-regional trade and per capita GDP in Asia would be far higher with the broadening of scope and coverage in Asian RTAs. Such a conclusion is reached through the evaluation of a comprehensive selection of intra-Asian RTAs - with specific reference to the utilization rates of the RTAs - which reveals the biggest drawbacks to such agreements are the connected issues of focusing almost exclusively on the liberalization of goods while at the same time providing for only modest liberalization in the sector. In this regard, liberalization efforts are severely hampered and potential gains from the RTA curtailed.

Doha dead and buried in Nairobi: lessons for the WTO

Purpose This paper aims to reflect on the outcomes of the Nairobi Ministerial Conference of 2015, which, for all intents and purposes, put the Doha Round to rest and analyses the policy implications and lessons for policymaking at the World Trade Organization (WTO), most importantly the abandonment of the “single undertaking” and return to plurilateral agreements. Design/methodology/approach The paper approaches the issue of WTO policymaking by analysing the various outputs produced both before and because of the Ministerial Conference. Findings The paper suggests that the Nairobi Ministerial has finally put an end to the Doha Round and comes to the conclusion that policymaking at the multilateral level (i.e. through the single undertaking) will change significantly in the future because the WTO Members are incapable of reaching a comprehensive agreement at this time. Instead, the current trend towards trade policymaking via FTA is likely to continue while the WTO focuses on plurilateral negotiations on narrow and discreet issues. Originality/value The paper contributes to the literature on the analysis of global regulatory fragmentation and on trade policymaking. It draws attention, in particular, to the consequences of the last Ministerial Conference and highlights prospects for the future of global trade regulation.

China’s Evolving Role in WTO Dispute Settlement: Acceptance, Consolidation and Activation

The establishment of the World Trade Organization (WTO) in 1995 marked a watershed in the history of international trade relations. Most notably, the WTO expanded sectoral coverage to include services and intellectual property (IP), allowed for an increased role for developing countries and created of a binding and enforceable dispute settlement system.

TPP Promoting Financial Services as an Investment Playground: Crystalizing a Change in Approach from GATS?

Considered as a secondary subject matter and largely ignored by international trade negotiators and the multilateral trade regime for some time, the importance of financial services in the wider sphere of international economic law has been steadily rising since the 2008 global financial crisis. First regulated internationally in the WTO’s GATS and the accompanying Annex on Financial Services, there remains much work to be done to further open and craft standards and rules for the sector. The text of the TPP had the capacity to play an important role in terms of liberalizing market access to financial services and in establishing a new set of standards and rules for their development at the global level. Financial services are both a trade and investment issue, yet negotiations have traditionally placed the issue within the trade ‘silo’ without recognising its important place as an investment issue. Negotiators of the TPP, in contrast, have followed the modern trend and added coherence to the issue by dealing with it both as a trade and investment issue, and rightfully placing financial services markets as a major investment playground. The TPP appeared to be a significant new player in the field of international economic law and this chapter therefore considers the TPP’s potential contribution to the liberalization of financial services by focusing on the idea that financial services may be promoted as a form of investment.

The Flow-On Effect: How the TPP Will Re-Shape Trade Relations in East Asia

Much ink has already been spilt on the Trans-Pacific Partnership (TPP), including some quality legal and geo-political analysis and high level economic enquiry but also far too many premature predictions of textual language or economic impact. This brief article does not attempt to predict or analyse the legal text, which at the time of writing had not been finalised, but rather highlights four potential flow-on effects a finalised and in-force TPP will have on trade relations in East Asia: (1) China’s response; (2) the impact on the ongoing negotiations of the Association of Southeast Asian Nations (ASEAN) aimed at deeper regional integration; (3) unilateral trade liberalization and good governance initiatives by aspiring entrants to the TPP; and (4) Taiwan’s status as an economic entity and participation in regional trade agreements. To this author, the flow-on effects will have a considerable impact on and go some way in re-shaping trade relations between and among East Asian nation states.