Rien Ne Va Plus? Distinguishing Domestic Regulation From Market Access in GATT and GATS

Depending on how one classifies market intervention, trade liberalization disciplines can be lenient or strict. Perhaps the most important distinction in this respect is that between government intervention labeled as a market access restriction and that defined as domestic regulation. Both the GATT and the GATS declare market access restrictions (such as import quotas or limitations on the number of service suppliers) to be, in principle, prohibited. In contrast, domestic regulations (such as internal taxes, health standards, and safety requirements) are treated with much more deference. They are, in essence, only prohibited when discriminatory or more trade restrictive than necessary. Notwithstanding these major legal consequences, the distinction between market access and domestic regulation remains unclear. Based on a recent WTO dispute condemning the United States for banning online gambling, this article is an attempt to clarify the distinction. Starting from broad similarities, it finds crucial differences in this respect between GATT and GATS. For both, however, the paper\u27s basic point is that a domestic regulation should not be regarded as a market access restriction simply because it has the effect of banning certain imports. To do otherwise risks seriously undermining the regulatory autonomy of WTO Members beyond anything imagined by the drafters of the WTO treaty

Book Review, Just Trade

Reviewing, Frank J. Garcia, Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade (2003

Adding Sweeteners to Softwood Lumber: The WTO-NAFTA “Spaghetti Bowl” Is Cooking

With the Doha round in trouble, the so-called spaghetti bowl of multilateral trade rules and proliferating regional trade deals, is, once again, prominently on the radar screen of the international trade community. Perfect examples of this image are the longstanding US-Canada softwood lumber and US-Mexico sweetener disputes. Both trade spats, extensively litigated in NAFTA and the WTO, are close to reaching a climax. Fueling the suspense is that the WTO and NAFTA may reach different results

Non-Traditional Patterns of Global Regulation: Is the WTO ‘Missing the Boat’?

Presented at the European University Institute, Florence, 24-25 September 2004, Conference on Legal Patterns of Transnational Social Regulations and Trad

A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?

An important, though oft neglected, distinction between multilateral treaty obligations separates obligations of the bilateral nature from those of the collective or erga omnes partes type. Multilateral obligations of the bilateral type can be reduced to a compilation of bilateral, state-to-state relations. They can be compared to contracts. Collective obligations, in contrast, cannot be divided into bilateral components. They are concluded in pursuit of a collective interest that transcends the individual interests of the contracting parties. The standard example of such obligations are those arising under a human rights treaty. In domestic law, collective obligations can be compared to criminal law statutes or even domestic constitutions. This essay examines the origins of the distinction between bilateral and collective obligations, as well as its major consequences, both in law of treaties and the law on state responsibility. On that basis, a wider typology of multilateral treaty obligations is suggested. In the exercise, obligations arising under the World Trade Organization are used as a case study. The argument is made that WTO obligations remain essentially of the bilateral type; they are not collective in nature

The Sutherland Report: A Missed Opportunity for Genuine Debate on Trade, Globalization, and Reforming the WTO

In January 2005, at the 10th anniversary of the organization, the World Trade Organization (WTO) issued the long-awaited high-level panel report on The Future of the WTO. This essay explains why the so-called Sutherland Report, named after one of its authors, is likely to be regarded by history as a missed opportunity. The report was written by insiders, focuses on insider problems and offers what are essentially insider-based solutions. The essay addresses two specific foundational problems skirted in the Sutherland report: (i) the WTO\u27s protectionist/producer bias and (ii) the question of coordination and coherence with other international organizations. It also offers an alternative diagnosis of the world trade system and suggests a novel paradigm to assess WTO reform proposals. Finally, some of the proposals in the Sutherland report are examined in light of this novel paradigm

How Binding Are WTO Rules? A Transatlantic Analysis of International Law

Presented at the University of Tuebingen, 14-16 October 2004 Conference on Changing Patterns of Authority in the Global Political Econom

Book Review

Reviewing Deborah Z. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (Oxford University Press, 2005

How Strongly Should We Protect and Enforce International Law?, University of Chicago Law School Workshop, March 2006

Observers of international law are obsessed with trying to explain and predict why and when states comply with international law. Doing so, they have consistently overlooked a logically preceding, but no less important, question: To what extent should states perform their international commitments? Put differently, how strongly should we protect and enforce international law? Worrying as much about over-enforcement of international law as under-enforcement of international law, this article offers a theory of relative normativity. This theory is driven by efficiency, effectiveness and legitimacy concerns rather than a hierarchy of values. It makes distinctions between how international law allocates entitlements, how it protects entitlements and how it reacts when rules of protection are broken (back-up enforcement). My central claim is that, much like domestic law, international law is best protected on a sliding scale between strict inalienability and simple liability. From that perspective, both what I call European \u27absolutism\u27 and American \u27voluntarism\u27 must be avoided as extreme and homogeneous normative frameworks

Europe, America and the “Unity” of International Law

Is international law Europeanized ? If so, what are the implications of such Europeanization for the unity and coherence of international law? This paper claims, first, that the application of international law by domestic courts in Europe does not threaten the unity of international law. There may be good reasons for domestic courts not to give effect to international law, based on democratic legitimacy, internal balance of powers or reciprocity with other nations. Yet, the risk of fragmentation or inconsistent interpretations is not one of them. Second, the definition and pursuit of a European agenda or European approach to international law does not threaten the unity of international law. Europe must shed its reluctance to define, and aggressively pursue, such agenda based on European values and interests. Third, and most importantly, when scratching the surface of today\u27s conventional wisdom of Europe as the defender of international law and America as its antithesis, the attitudes, mental framework and reflexes as well as prevailing concerns are strikingly similar across the Atlantic. Most differences in approach are explained not by inherent, substantive disagreements between Europe and the US, but rather by relative power positions and internal constitutional features