Federico Ortino

Regional Trade Agreements and Trade in Services

The services sector accounts today for two thirds of global output (65% of GDP in 2004; 45% of GDP in 1960) and represents the fastest growing sector of the global economy. In a world where competitiveness is key to economic development, services play a vital role in ensuring a competitive economy. Service industries provide the infrastructure allowing modern economies to function by linking geographically dispersed economic activities or supplying crucial inputs into products competing in the domestic and global markets. In recent years the number of international agreements purporting to liberalize and promote trade in services has increased dramatically. While the General Agreement on Trade in Services (GATS), negotiated as part of the Uruguay Round in the late 80s/early 90s, has represented the pioneer-and often the model-in the field, much of the recent and current international treaty making addressing trade in services (as well as trade in goods and foreign investment) has occurred at the regional and bilateral levels. The outlook stemming out of this almost frenetic treaty-making activity is a complex and multilayered network of international rules regulating the transnational movement of services and service providers in essential sectors such as the financial, telecommunication, business and professional sectors. This chapter is divided in two main parts. Section II describes the basic features of the GATS focusing in particular on the following issues: (a) scope of application, (b) general obligations and disciplines, (c) specific commitments and (d) sectoral disciplines. Focusing broadly on these same issues, section III will analyze the services chapters of the Regional Trade Agreements (RTAs) that have been notified to the WTO Council for Trade in Services on the basis of Article V GATS. This chapter does not address the issue of the level of liberalization that these RTAs have actually accomplished or the issue of the compatibility of these agreements with GATS. Click here to view a draft version of the paper.

Investment Treaties, Sustainable Development and Reasonableness Review: A Case Against Strict Proportionality Balancing

The paper tackles the question of how far should investment tribunals go in reviewing the reasonableness of host State conduct. Based on an evolutionary interpretation of the preamble of international investment treaties and focusing on the principle of integration as the key element of the concept of sustainable development, the paper main argument is that investment tribunals should avoid a review based on proportionality stricto sensu or cost-benefit balancing.

Towards a UK Trade Policy Post-Brexit: The Beginning of a Complex Journey

Trade has had a stunning return to the spotlight since the results of the Brexit referendum were announced. While it is much too early to speak of failure or success of the UK’s trade policy, we allege that the current debate shows a lack of understanding of modern international trade law and policy. This in turn leads to a lack of appreciation of the tasks ahead for the UK. The limited aim of this short article is to point out the scope of some of the key challenges and the complexities that the UK will face on the road towards a post-Brexit trade policy. We consider a proper appreciation of these complexities to be vital for a transparent, fair and inclusive formulation of the UK’s trade policies, which will determine not only the UK’s economic fate, but also the UK’s laws and many of its domestic policies for decades to come.

The Need for An International Investment Consensus-building Process

Chinese Abstract: 鉴于改善国际投资体制的热议，需达成一项独立、开放、多利益相关方的国际投资共识来审查与国际投资法相关问题的范围、系统地查明存在的问题、探讨该如何解决这些问题并提出解决方案。English Abstract: As discussions intensify to improve the international investment regime, it would be desirable to initiate an independent, open-minded, multi-stakeholder international investment consensus-building process to examine the range of issues associated with international investment law, to determine systematically what the concerns are, to discuss how and where to address them, and to propose solutions.

The GATT and its Challenges at 60

The importance of the General Agreement on Tariffs and Trade (GATT), concluded in Geneva on 30 October 1947, applied on a provisional basis from January 1948 until December 1994 and reincarnated since the establishment of the WTO in 1995 in the GATT 1994, cannot be overstated. As it functioned as the major international ‘agreement’ and ‘institution’ at the heart of the multilateral trading system, the GATT accomplished much of its original mandate: the substantial reduction of tariffs and other barriers to trade and the elimination of discriminatory treatment in international commerce.Scholars have described the GATT 1994 as an ‘incomplete contract’ for at least three sets of reasons. First, the GATT 1994 directly binds only certain trade policies, leaving WTO Members significant discretion over domestic regulatory and fiscal policies with a potentially high trade impact. Second, the GATT 1994 employs vaguely worded provisions, leaving the determination of the actual meaning of the agreement subject to adjudication or to further treaty negotiations. Third, the GATT 1994 includes more or less explicitly an ambitious built-in agenda with regard to the liberalisation of Members’ trade policies, conditioning the success of this agenda to Members’ ability to reach a consensus in future negotiating rounds. In this sense, the GATT 1994 is no different from most other international treaties, which suffer from similar ‘birth defects’.The present Chapter addresses a few selected key issues stemming out of the ‘incomplete’ character of the GATT 1994, and which remain controversial. The Chapter is structured in three parts, along the lines of Mavroidis’ subdivision of GATT 1994 disciplines: (i) disciplines on ‘trade instruments’ (measures affecting importation or exportation), (ii) disciplines on ‘domestic instruments’ (measures affecting production or consumption) and (iii) disciplines on ‘state contingencies’ (specific emergencies dealing, for example, with balance of payments, currency exchange and dumping). The Chapter advances that while the GATT has, so far, accomplished a lot in terms of establishing the key principles and approaches to the regulation of trade in goods, it has still further challenges to meet in its not-too-distant future.