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Compliance with international institutional norms is often conceived as a yardstick with which to test the effectiveness of international law. However, the ongoing failure of the WTO regime to elicit compliance with its agreements has led many legal theorists to reject this view in favour of a ‘realism’ that describes an international system, void of any authority to enforce rules, in which egoistic states calculate their own interests in light of the existing distribution of power. An ‘institutionalist’ riposte, which insists on the capability of states to come together nonetheless to make binding rules that will determine their behaviour vis-à-vis each other, of necessity focuses on developing enforceable remedies when rules are not complied with. Confronting this stark and apparently intractable situation, this book applies social science theories to the question as to why nation-states comply or do not comply with international trade law obligations. The author examines various theories of compliance in the context of world trade law, and discusses ways in which a much more robust compliance with global trade rules may be ensured. In the course of the analysis numerous germane issues arise, including the following: the stalemate in the WTO judicial and political process; third party rights and WTO Law compliance; the role of arbitrators in determining reasonable period of time; contract theory; reputation costs; good faith obligations required by pacta sunt servanda; imposing remedies collectively; multilateral enforcement of DSB findings; and early determination of injuries once nullification and impairment have been established. The author’s approach leads not only to a new understanding of the function of the WTO as a legal system, but also to well-grounded recommendations concerning remedies that address the issue of continuous breach of legal duties in the WTO. This is a timely and accessible analysis of an increasingly important aspect of the interface of international trade law and economics. It will undoubtedly lead to a deeper debate and accelerate the inevitability of effective practical action. Policymakers, practitioners, and academics in different fields of social sciences will appreciate its forward-looking perspective in identifying the issues that are now assuming centre stage in international economic law.
This book examines some of the most prominent contemporary theories of compliance with international law. It is argued that these theories ultimately rely on some political philosophy and that therefore their strengths and weaknesses can be traced back to those of the respective philosophical background. The approach finally taken is based on some recent empirical and theoretical research undertaken and as such provides new insights to the major works of the authors that are at the core of the discussion.
Non-violation complaints are a particular feature of the WTO legal order. Ever since the GATT came into force, non-violation complaints, based upon the tradition of bilateral US Trade Agreements, have puzzled scholars and practitioners alike. This book provides an in-depth analysis of panel practice and theory on the subject. It offers a new approach to reading and interpreting non-violation within contemporary international law. The reader will find not only a comprehensive analysis but also a new theory on non-violation complaints, based upon international liability. The book will be of help to all dealing with the complexities of WTO law and litigation and assist them in understanding the functioning of the WTO.
This book explains China’s intellectual property perspective in the context of European theories, through a critical examination of intellectual property theory and practice focused on China’s compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The author’s critical review of contemporary intellectual property philosophy suggests that justifying intellectual property protection through Locke or Hegel’s property theories internalizes a theoretical paradox. “Professor Wenwei Guan’s treatment of intellectual property law and practice in the PRC offers new perspectives that enrich an already active field of study . . . This book will be a useful contribution to academic and policy discourses examining conceptual and operational dimensions of China’s intellectual property protection system and the broader process of China’s international engagement.” – Dr. Pitman B. Potter, Professor of Law, University of British Columbia, Canada “Dr. Guan reminds us of the daunting challenge of the public-private divide in forming and reforming TRIPS regime; how this regime has failed to address development needs and public concerns in developing countries like China; and how TRIPS’s ‘birth defect’ can be overcome and its evolution can be put back on the right track.” – Dr. Yahong Li, Associate Professor at Faculty of Law, Hong Kong University
The second edition of this leading reference work provides a comprehensive discussion of the dynamic and important field of international law concerned with environmental protection. It is edited by globally-recognised international environmental law scholars, Professor Lavanya Rajamani and Professor Jacqueline Peel, and features 67 chapters authored by 76 renowned experts in their fields. The Handbook discusses the key principles underpinning international environmental law, its relevant actors and tools, and rules applying in its substantive sub-fields such as climate law, oceans law, wildlife and biodiversity law, and hazardous substances regulation. It also explores the intersection of international environmental law with other areas of international law, such as those concerned with trade, investment, disaster, migration, armed conflict, intellectual property, energy, and human rights. The Handbook sets its discussion of international environmental law in the broader interdisciplinary context of developments in science, ethics, politics and economics, which inform the way in which environmental rules are made, implemented, and enforced. It provides an introduction to the foundations of international environmental law while also engaging with questions at the frontiers of research, teaching, and practice in the field, including the role of Global South perspectives, the contribution made by Earth jurisprudence, and the growing role of a diverse range of actors from indigenous peoples to business and industry. Like the first edition, this second edition of the Handbook is an essential reference text for all engaged with environmental issues at the international level and the applicable governance and regulatory structures.
This is a comprehensive overview of the law and practice of the World Trade Organization. It begins with the institutional law of the WTO, moving eventually to the consequences of globalization. New chapters on Trade in Agriculture and on Government Procurement and Trade.
This book analyzes how the Appellate Body uses particular principles of general international law in interpreting the WTO covered agreements. It deals equally with general international law and WTO law. The aim is to explain how the Appellate Body interprets and applies customary international law on treaty interpretation in dealing with the WTO covered agreements. The main concern is to analyze the judicial reasoning and ways of justifying judicial decision-making. In particular, it answers the question of how the Appellate Body explains its reading of WTO treaty language. It is argued that the Appellate Body has interpreted the WTO covered agreements in a contextual and effective manner, an approach that corresponds with general international law. The character of the WTO covered agreements has, nevertheless, confronted the Appellate Body with some questions of interpretation that were until recently unexplored or neglected by other courts and tribunals. In that sense, the Appellate Body has contributed to the development of general international law on treaty interpretation, or at least to its practice. WTO law is primarily treaty law, but increasingly soft law and broader themes and values from other disciplines, such as governance, variable geometry and legitimacy, are introduced and discussed. Customary international law - with the exception of the principles of treaty interpretation - and general principles of law are often seen as excluded entirely. An ancillary theme of this proposed monograph is the extent to which customary international law and general principles of law have penetrated WTO law through the technique of treaty interpretation.
This article develops a dynamic institutional theory of international law that integrates and builds from insights in the legal, economics (game theory), and international relations disciplines. While a number of scholars have applied game theory and international relations theories to international law, this theory is both novel and useful because it provides a theoretic framework for (1) analyzing international commitments, compliance institutions, and the dynamic process by which international legal regimes evolve; and for (2) examining and comparing the strategic institutional approaches taken to address compliance issues in different regimes. Each of these contributions is significant. With respect to the first contribution, international scholars have not developed a rational choice theory that integrates consideration of commitments, institutions and dynamicism. The theory that comes closest is iterated game theory. This theory extends the iterated game theory model, which is often used by rational choice theorists in the international relations and international law disciplines to study international cooperation, by recognizing first that iterated games actually evolve and second that States create institutions to cope with this evolution and sustain cooperation in the face of dynamic change. States understand when entering into an international agreement not only that they face noncompliance risks as traditionally conceived (defection based on incentives presented in iterated game context, for example), but also that dynamic change may threaten the stability of the game (unforeseen events may cause payoffs to change in magnitude or become more or less certain, for example). Accordingly, ex ante, States design institutions to monitor State behavior and adjust payoffs either by rewarding cooperators or punishing defectors - as predicted by traditional game theory - but also to maintain cooperation in the face of dynamic change - as predicted by a theory of evolving games. States create institutions to reduce uncertainty and transaction costs associated with dynamic change and to adjust commitments in future iterations. Such institutions facilitate internal change and maintain cooperation by relieving parties of the need to return to the bargaining table every time the game structure changes. With respect to the second contribution, international scholars have not developed a theory that supports comparative analysis of the strategic institutional approaches taken to address compliance issues. The dynamic institutional theory highlights compliance strategies that have received very little attention by international scholars despite the prominence of such strategies in practice. The article specifically contends that States pursue three types of compliance strategies: Type I strategies focused on adjusting States' incentives to comply by altering payoff structures (the expected costs and benefits of (non)compliance); Type II strategies focused on facilitating cooperation by reducing transaction costs and uncertainty as the legal regime evolves; and Type III strategies focused on maintaining cooperation and improving regime effectiveness by dynamically adjusting commitments over time. Comparative analysis of compliance institutions illustrates that these strategies may be implemented through different types of institutions and that the optimal choice of strategy and institutions may vary considerably across issue-areas. The final part of the article applies the theoretical framework to the GATT/WTO regime as well as the international regime that regulates ozone depleting substances (the "Ozone regime"). Attention is given to these regimes because they have been effective in achieving treaty objectives, are often considered as models for the development of compliance institutions in related areas of international law, and are increasingly the focal point of interdisciplinary legal issues. Applying the dynamic institutional theory to the GATT/WTO regime reveals that, while international trade law has evolved into a relatively strong version of public international law, the strength of the current WTO regime does not derive from strict enforcement-oriented institutions aimed at deterring intentional noncompliance through the threat of sanctions, a Type I strategy. Despite its adjudicative, rule-based orientation, the WTO dispute settlement institution, which is the cornerstone of the WTO regime, actually appears to be management-oriented and facilitative in the sense that it primarily implements Type II and Type III compliance strategies and implements Type I strategies only on a limited prospective basis. This important finding is contrary to conventional wisdom and should inform debates regarding reform of the WTO as well as the design of future compliance systems. Overall, the WTO compliance system is designed to maintain regime stability by internalizing (within the structure of formal, legalistic institutions) issues that otherwise might prompt parties to work outside the system (in the realm of pure politics). Applying the dynamic institutional theory to the Ozone regime reveals the complex, multifaceted nature of the Ozone compliance system, which implements all three strategies through a host of innovative institutions. As a result of this system, the Ozone regime has experienced very high rates of participation and compliance while dynamically adjusting commitment levels and adding newly identified ozone depleting substances to the list of regulated substances. Notably, although the system includes institutions empowered to implement Type I strategies through both positive and negative means (side-payments and penalties), no significant penalties have been given. To date, the compliance system has operated primarily in "managerial mode" with the threat of enforcement lurking in the background.
United Nations Conference on Trade and Development
Author : United Nations Conference on Trade and Development Publisher : Page : 164 pages File Size : 26,52 MB Release : 2010 Category : Political Science ISBN :
The publication contains an explanation of Most Favored Nation (MFN) treatment and some of the key issues that arise in its negotiation, particularly the scope and application of MFN treatment to the liberalization and protection of foreign investors in recent treaty practice. The paper provides policy options as regards the traditional application of MFN treatment and identifies reactions by States to the unexpected broad use of MFN treatment, and provides several drafting options, such as specifying or narrowing down the scope of application of MFN treatment to certain types of activities, clarifying the nature of "treatment" under the IIA, clarifying the comparison that an arbitral tribunal needs to undertake as well as a qualification of the comparison "in like circumstances" or excluding its use in investor-State cases.