Global Standard-Setting 2.0: How the WTO Spotlights ISO and Impacts the Transnational Standard-Setting Process

Transnational technical standard-setting has grown in prominence in recent years. The World Trade Organization (WTO) requires the use of international standards but adopts a deferential approach towards international standards. However, practice shows that several international standards are promulgated through opaque and exclusionary processes. In line with this observation, in its recent US—Tuna II ruling, the Appellate Body adopted a more critical stance regarding international standards and the processes that lead to their adoption. Against this backdrop, this article focuses on an analysis of the properties and mechanics of international standard-setting processes within the International Organization for Standardization (ISO), discussing procedural and substantive guarantees regarding transparency, openness, deliberation and participation. As the WTO becomes the de facto arbiter of the legitimacy of international standards, much needed institutional reform in international standard-setting is bound to occur. Arguably, this is bringing a paradigm shift in standardization practices and introduces “global standard-setting 2.0.” Such trend is in line with emerging demands for a more inclusive global legal order

Financial innovation and climate change: the case of renewable energy certificates and the role of the GATS

Energy has come to the forefront of the public debate in the past decade for two main reasons: the first relates to the lack of a secure, continuous, and unconditional energy supply in the importing countries, mostly developed and transition economies, which are still dependent on non-renewable carbon-based fossil fuels. The second reason is that uncontrolled production, distribution, and use of conventional energy may lead to environmental degradation and global warming. Renewable energy certificates (RECs) are instruments that allow countries to promote energy generation from renewables and form part of domestic policies aimed at climate change mitigation and adaptation. Since RECs can be traded in secondary markets, this paper discusses issues raised by the nature of and the trade in RECs which can be of concern for the General Agreement on Trade in Services (GATS) and the multilateral regulation of trade in financial services, notably in the case where World Trade Organisation (WTO) Members undertook sweeping commitments in financial services which equally apply to trade in REC

Global trade-enabling law

Trade regulation may never have been in more flux than it is nowadays. Apart from the emergence of ‘megaregionals’ (more recently, the Regional Comprehensive Economic Partnership – RCEP, or the Comprehensive and Progressive Trans-pacific Partnership–CPTPP) and the difficulties in pursuing the objectives of the Doha Development Agenda, the increased heterogeneity of interests within the World Trade Organization (WTO) puts into question its ability to achieve its central objective of free(r) trade. While internally rethinking the future of the WTO, it seems opportune to discuss, and factor in the realities of everyday global trade. To this end, this Article argues that the stateless reality of commercial transactions requires that state-driven, trade-related rule-making and stateless rule-making should be analysed in tandem if we are to make any sense of how global trade works and evolves. It further advocates a new theory of global trade-enablinglaw that focuses on a critical review of all rules that aim to mitigate legal risks of economic actors when they partake in transboundary commercial activities. This theory would emerge from a norm-user perspective that focuses on the functionality of the law. Global trade law-related research should focus on and evolve around three, broadly-defined axes: first, the identification and critical review of a set of principles akin to the global law advocacy; second, the analysis of the phenomenon of the empowerment of non-State constituencies, including firms, and a more intensive bridge-building with not only the semiautonomous regimes of transnational private regulators but also with other international organizations (IOs) (be it governmental, non-governmental or hybrid), whose activities have an impact on commercial transactions; and, third, the intensification of the still scattered, unsuccessful efforts to create a more inclusive global trading system brimming with development opportunities for all. Action in these three areas shall determine the sustainability and resilience of global trade law

Transnational economic activism and private regulatory power

Private bodies involved in global regulatory governance shape and monitor economic behaviour. Their regulatory power has greatly increased over the last several decades. Thanks to an impressive apparatus of standard-setting, they have transformed economic activity. The dominance of private bodies in standard-setting has continued despite crises to which they themselves have contributed. Existing literature suggests that the State ' orchestrates ' private regulatory activity, thereby retaining a high level of control. Yet, this article shows that the opposite has occurred: crises, broadly defined as disruptive events, make private bodies more resilient or generate new transnational ones. The lack of State control has ushered in a new era of private authority. Private bodies use crises as opportunities to reorganize and become more assertive in norm-creation, overriding and substituting State powers. Free from organizational hierarchies, formal accountability structures, scrutiny, pressure, and obligations, private bodies expand their regulatory domain, enhance their collective memory and identity, and grow stronger through crises. Future empirical work on the interaction between public regulatory and supervisory authorities and private rule-makers can make a difference in ensuring that private rule-making serves the public interest