The EU, the WTO and indirect land use change

Efforts to meet the European Union’s (EU) alternative energy targets have resulted in increased production of biofuels. This production has resulted in deforestation-related emissions through displacement of agricultural production, a problem known as indirect land-use change. The European Commission (EC) has proposed regulatory options to respond to this problem, but all risk not being in conformity with World Trade Organization (WTO) law.Trade law challenges result from the underlying methodological uncertainty, and the attempt to address a systemic problem on the level of individual producers.Yet, this does not necessarily indicate that the intent of these regulations is to protect EU markets.Thus, this is an instructive case study to examine the relationship between WTO law and complex, emerging environmental problems

Is it rational and consistent? the WTO’s surprising role in shaping domestic public policy

What makes regulation rational? And why is rationality important to an international tribunal? In the World Trade Organization (WTO) context, these questions have had significant implications for the public policy of its Member countries. The WTO Appellate Body’s emerging emphasis on means–ends rationality testing is based on the questionable premise that consistent regulation is non-discriminatory. It has led regulators, such as the EU, to defend—and probably even construct—complex regulation in a way that emphasizes conformity to one overarching policy objective. More surprisingly, the Appellate Body has re-cast itself as public policy watchdog, pointing out when governments do not appear to be committed to their cause. In response, governments have strengthened disputed regulation, rather than making it less trade-restrictive. This retreat to rationality can be seen as a result of a difficult challenge facing the Appellate Body: how to review national regulation without passing judgment on it. More specifically, the rationality test pays the price of the Appellate Body’s retreat from proportionality

Do the same conditions ever prevail? Globalizing national regulation for international trade

Countries craft their regulations in a specific national context. When foreign exporters apply this regulation to achieve market access, it becomes subject to a global array of implementation conditions. Several WTO disputes have ruled that regulation failed to acknowledge the conditions of foreign exporters. The WTO Appellate Body has suggested that comparing conditions or ‘situations’ is part of not discriminating between foreign and domestic products, but the implications remain vague. In fact, pulling too hard on this thread could unravel the non-discrimination principle as it leads to its inherent contradiction: regulation will never treat all trade partners exactly the same precisely because of their diverse conditions. Further, suggesting that it should puts a huge undue burden on regulators: deep integration run amok. Key WTO environment and development controversies centre on how to acknowledge differences between countries’ situations and still achieve the formal equality that the system promises. The case law on situational discrimination feeds into these debates. This article proposes that the focus should be on how different situations influence the comparative effectiveness of a regulation in meeting its goal, an approach which delimits and clarifies

CE project

The new sound: I will make a record, featuring myself as an artist/producer. I will sing, I will make tracks, I will dub mix, I will make my beautiful music, as Ben put it, my Dark Side of the Moon. I will try every technique I can, quantity, to arrive at quality. My years as an engineer/producer have taught me how to flesh out tracks, make them solid, and shine. Now it’s time to use the resources of Berklee Valencia to add some captivating details and future roots dubs to that experience.https://remix.berklee.edu/graduate-studies-production-technology/1066/thumbnail.jp

Environmental standards and regulation

Both the United Kingdom (UK) and the European Union (EU) have called for non-regression of environmental standards and regulation in their future relationship. As environmental regulation imposes costs, there is an incentive for governments to give their industries a competitive advantage through deregulation. The EU has tried to prevent this problem in existing trade agreements by including a requirement for non-regression of environmental standards. The draft Withdrawal Agreement of November 2018 also includes requirements for non-regression of environmental standards that would apply, as part of the so-called backstop, if a future relationship agreement were not concluded by the end of the transition period. Even if (and when) the backstop is superseded by the future relationship, the UK and the EU have indicated that this relationship will build on these commitments. In this note I first describe why this ‘environmental backstop’ is an innovative hybrid between the full alignment with environmental legislation required in EU Association Agreements and the European Economic Area (EEA) Agreement, and the arm’s length non-regression requirements that the EU has negotiated in its trade agreements with countries such as Canada and South Korea. It also has some unique features. Notably, successful implementation would require substantial reform in UK environmental monitoring and enforcement. I thus examine how it might function in practice, focusing on challenges with enforcement. Finally, I analyse its applicability to different models for the future relationship. The Withdrawal Agreement links environmental non-regression to a specific UK-EU customs union. However, if the UK and EU go beyond this, pursuing deep regulatory alignment, it will also prove a source of fundamental disagreement. The UK’s current position is to push for non-regression to stand in for regulatory alignment, whilst the EU will likely reject such an approach

Triggering Article 50 TEU: a legal analysis

• Article 50 of the Treaty on European Union (TEU) will govern the UK’s withdrawal from the EU. • The use of Article 50 TEU is unprecedented and withdrawal will be governed by both legal and political processes within the UK, the EU and the World Trade Organization, making it a complex undertaking. • In this context, several aspects of the interpretation and application of Article 50 TEU pose particular challenges. These include domestic controversy regarding the constitutional requirements for triggering Article 50 TEU, the short time-span of negotiation, and the uncertain role for the UK in trade negotiations with the EU and the rest of the world during the withdrawal process. This paper outlines these issues, focusing in particular on the EU and international trade (rather than domestic constitutional) dimensions of withdrawal, in order to provide clarity and highlight potential pitfalls affecting both the EU and the UK. ISBN: 978191204470

The UK must develop a cross-cutting strategy for trade and climate policy in order to become a world leader in both

Chloe Anthony and Emily Lydgate write that, while the potential for conflict between trade and climate policy is high, the UK could create coherence between the two. They explain how

Sustainable development in the WTO: from mutual supportiveness to balancing

The WTO Secretariat describes sustainable development as a central WTO principle. Relevant international law treaties have declared sustainable development’s mutual supportiveness with trade liberalization, and also emphasized the need to balance its ‘pillars’: economic development, often equated with trade liberalization, with environmental conservation and social welfare. While ‘mutual supportiveness’ suggests that sustainable development’s environmental and social goals are a side effect of trade liberalization, ‘balancing’ involves weighing these different goals, and prompts the difficult question of which are most important, and who is empowered to decide. This paper traces these two broad theoretical conceptions through WTO legal texts, negotiations and dispute settlement, arguing that they have important pragmatic implications. In particular, to create mutual supportiveness WTO Director-General, Pascal Lamy, has stated the need for adequate domestic policies, suggesting that the WTO should support these. Yet, if they have negative trade impacts, pure ‘sustainable development’ policies may be difficult to balance against the WTO obligation to liberalize trade

Consumer preferences and the National Treatment Principle: emerging environmental regulations prompt a new look at an old problem

Should consumers’ preference for ‘green’ products help justify,from a WTO perspective, emerging regulations such as restrictions on trade in non-sustainable biofuels? Despite the role consumer preferences have played in WTO disputes, in association with the ‘ like ’ products concept, there has not been enough focused examination of their specific influence, particularly in disputes on ethical public policy issues, such as environmental or health regulations. To this end, this paper examines key GATT Article III disputes, pointing out that they included attempts both to measure, and also to interpret, consumer preferences. The latter approach becomes more tempting when consumer preferences are difficult to measure; import bans or restrictions associated with ethical public policy regulations can bring about such a situation. A hypothetical dispute about EC biofuels sustainability criteria demonstrates this problem. Options to make the concept of consumer preferences more coherent include limitations on how they can be invoked, and an increased commitment to capturing them through measurement