Achieving a Free Trade Area of the Asia-Pacific: Does the TPP Present the Most Attractive Path?

Published as Chapter 15 in The Trans-Pacific Partnership : A Quest for a Twenty-First Century Trade Agreement, C.L. Lim, Deborah K. Elms & Patrick Low, eds. This chapter examines the prospects for the Trans-Pacific Partnership (TPP) to expand into a Free Trade Area of the Asia-Pacific (FTAAP). It does so by comparing the TPP to other potential models for Asian economic integration, and by identifying what factors might enhance or diminish the possibility of the TPP serving as the FTAAP model. First, the chapter briefly traces the history of the TPP and its linkage to a potential FTAAP. Second, it examines other potential models for regional economic integration and discusses the pros and cons of each option for the major economies in the region. Third, it discusses reasons why the TPP might or might not be the preferred model, identifying important factors playing into this calculus. The concept of an FTAAP has been bandied about for the past several years. C. Fred Bergsten has been a particularly strong advocate of this idea, espousing the pursuit of the Bogor goals of free trade and investment regimes throughout the Asia-Pacific Economic Cooperation (APEC). APEC initiated a study of the FTAAP concept in 2006, and in 2009 pledged to explore pathways to create an FTAAP. Bergsten’s early writings 3 on the subject assumed the only way an FTAAP could be accomplished would be to take the existing regional FTAs and agreements and combine them into an FTAAP. More recently, however, Bergsten has seized upon the TPP as the basis for an ultimate FTAAP.https://digitalcommons.law.buffalo.edu/book_sections/1108/thumbnail.jp

The TPP and the RCEP (ASEAN+6) as Potential Paths Toward Deeper Asian Economic Integration

Facing the trend of globalization, voices within Asia have been calling for deeper Asian integration. In the international economic context, numerous competing visions have been proffered over the years as to what form that integration should take, and which country or countries should lead that process. Amongst these various possible forms of integration, the Trans-Pacific Partnership has emerged as a contender to expand into a Free Trade Agreement of the Asia-Pacific. Unlike any models proposed previously, the TPP includes the United States, but at present does not include China. In turn, the momentum of the TPP appears to have spurred China to push more actively for its own multiparty grouping, the ASEAN＋6 , currently known as the Regional Comprehensive Economic Partnership (“RCEP”). In this article, the author analyzes the similarities and differences between these two potential paths towards Asian integration and identifies factors that may influence each agreement’s prospects of expanding further

WTO Winners and Losers: The Trade and Development Disconnect

The World Trade Organization (\u27WTO\u27 or the \u27Organization\u27) is premised upon increasing prosperity by opening markets to greater trade flows. Although the goals of the Organization include enhancing development and reducing poverty, thus far the WTO has had difficulty bridging the gap between its trade expansion focus – exemplified by members’ substantive commitments to provide greater access to their markets – and its desire to promote development – largely framed in aspirational, nonbinding terms. This article explains why current measures to assist developing countries (\u27DCs\u27) are not a complete solution to the trade and development disconnect. It further proposes using the concept of Kaldor-Hicks efficiency as the basis for a framework under which the WTO’s trade and development aims could be pursued in a more integrated fashion by adopting a direct or indirect compensation mechanism

When Popular Decisions Rest on Shaky Foundations: Systemic Implications of Selected WTO Appellate Body Trade Remedies Jurisprudence

Published as Chapter 9 in International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita, Julien Chaisse & Tsai-yu Lin, eds. This chapter argues that the WTO Appellate Body has not been consistent in applying Article 31 of the VCLT and considering the context of the relevant treaty text in light of its object and purpose. It has instead either been overly mechanistic in its textual interpretation or has strayed from the text, sometimes with the appearance of preferring an outcome-based result. Part I of the chapter discusses the appropriate role context should play in interpreting the WTO agreements. Parts II through IV critique aspects of the Appellate Body’s jurisprudence in the zeroing cases; the 1916 Act dispute; and the early safeguards cases, as generating interpretive difficulties by failing to give enough attention to real-world context and object and purpose. Part V explores possible reasons for these departures by the Appellate Body from a contextualised textual analysis, and identify some systemic implications of these decisions.https://digitalcommons.law.buffalo.edu/book_sections/1116/thumbnail.jp

Expanding the P-4 Trade Agreement into a Broader Trans-Pacific Partnership: Implications, Risks and Opportunities

In 2005, New Zealand, Singapore, Chile and Brunei entered into a path-breaking free trade agreement, the Trans-Pacific Strategic Economic Partnership Agreement which is also known as the P-4 Agreement. The agreement contains an open accession provision which explicitly contemplates the expansion of the agreement to include other countries willing to commit to its terms. The expansion of the agreement has important implications for the world trading system. Its broad coverage and open accession provision may suggest that the agreement has the potential to serve as a stepping stone in the path towards further multilateral trade liberalization in the WTO context. On the other hand, expanding the agreement could result in an agreement so powerful that its members no longer consider devoting energies to liberalizing in the WTO context to be of great importance. The article explores some of the unique aspects of the TPP as well as the potential implications of expanding the agreement, both for the East Asian region and for the broader multilateral trading system

Human Rights Provisions in Free Trade Agreements: Do the Ends Justify the Means?

Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious about the potential for FTAs to improve the circumstances of developing countries. There is an inherent inequality in FTA negotiations between developed and developing countries. And trade agreements vary significantly in the degree to which they provide for financial, technical, logistical, and other forms of assistance to their developing country participants. Given the unfavorable bargaining power developing countries face in FTA negotiations with developed country partners and the trend towards negotiating FTAs that are not well-aligned with poorer countries’ interests, FTAs may not be a suitable forum for addressing human rights-related concerns. Furthermore, even though the European Union’s FTAs among others contain human rights clauses, such FTAs by and large do not include the countries with the worst human rights abuses. While human rights violations occur in all countries, there is a significant correlation between level of economic development and such abuses. The countries that are considered to have the highest levels of corruption and human rights abuses are not, by and large, participating in FTAs or other reciprocal trade agreements, at least in part because they are not members of the WTO. While the WTO is not a panacea for developing countries, it may provide the better space – as compared to FTAs – for achieving objectives in furtherance of human rights objectives

The Politics and Indirect Effects of Asymmetrical Bargaining Power in Free Trade Agreements

Published as Chapter 2 in The Politics of International Economic Law, Tomer Broude, Marc L. Busch & Amelia Proges, eds. The World Trade Organization (WTO) has been, and continues to be, shaped in its agreements and institutional foci in significant part by political pressures emanating from its members, particularly those able to wield the most influence. Rather than being an institution with the singular focus of achieving free trade among all members, the WTO comprises a complex set of agreements, many of which represent a politically driven compromise among members as to how to manage trade rather than to liberalize it. Although the state of WTO liberalization reflects positions agreed to in part as a result of political realities, the reach of politics is more significant in the context of bilateral trade negotiations. Indeed, what members cannot accomplish through the WTO they may try to achieve through free trade agreements (FTAs), particularly with politically or economically weaker trade partners. In the case of the United States, FTAs have been used as an opportunity to impose provisions favored by domestic constituents – such as strengthened intellectual property provisions and labor and environment clauses – that it has not been able to get WTO members to agree to collectively in the multilateral forum. A similar phenomenon has occurred with respect to the European Union (EU) and its FTA partners. For countries with less bargaining power, the WTO\u27s multilateral setting provides some buffer from power politics in the form of the consensus decision-making practice and the disproportionate number of developing and least-developed countries.https://digitalcommons.law.buffalo.edu/book_sections/1112/thumbnail.jp