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The signature of the African Continental Free Trade Area (AfCFTA) Agreement during the 10th Extraordinary Summit of the African Union (AU) Assembly of Heads of State and Government held on 21 March 2018, in Kigali, Rwanda, marks a decisive turn in African regional economic integration. After speedily securing the minimum threshold of 22 signatures, the Agreement, with the Protocols on Trade in Goods, Services and Dispute Settlement, entered into force on 30 May 2019. While the AfCFTA comes at a very good time for the continent especially by proposing African solutions to African problems, it also happens amidst a backlashed multilateral trading system epitomised by the US-China trade war, the WTO negotiations stalemate and the likely demise of its dispute settlement mechanism, as well as the United Kingdom’s exit from the EU (Brexit). The AfCFTA’s main aim is to create a single continental market for goods and services, with free movement of businesspersons and investments, and thus pave the way for accelerating the establishment of the continental Customs Union. While the establishment of existing regional trade agreements (RTAs) has not always been conditioned on the satisfaction of the WTO rules on the issue, this article examines the regime under which the AfCFTA should be scrutinised. This calls for the dissection of the pertinence and the desirability of the Enabling Clause as opposed to Article XXIV for this scheme composed of developing and least-developed countries. The paper notes the tendency since 1979 to notify intra-African RTAs under the Enabling Clause contrary to earlier practice.

Spanish Abstract: La crisis economica ha tenido un impacto muy notorio sobre el Estado democratico de Derecho. Durante la X legislatura, principal testigo de aquella, se han venido aprobando un numero importantisimo de decretos-leyes orientados a combatirla. Sin embargo, el caracter extraordinario y urgente de las medidas introducidas, en terminos generales, deviene altamente cuestionable. La sistematica falta de motivacion explicita y razonada sobre la concurrencia del presupuesto habilitante, unida al caracter estructural de las medidas introducidas, a su -en ocasiones- falta de aplicacion inmediata asi como a la ausencia de imprevisibilidad de la situacion que se trata de abordar, cuestiones generalmente avaladas por el propio Tribunal Constitucional, ponen verdaderamente en tela de juicio el uso democratico que el Ejecutivo ha hecho de este instrumento juridico. English Abstract: The economic crisis has got a notary impact on the rule of law. During the X legislature, that has been its main witness, an important number of decree-laws orientated to fight it have been passed. However, the extraordinary and urgent need of the measures introduced has become highly questionable. The systematic lack of an explicit and reasoned explanation about the use of this legal figure, together with the structural nature of the reforms made, its lack of immediate application and the absence of unpredictability of the situation faced - aspects generally endorsed by the Constitutional Court - call into question the democratic use the Government has made of this tool.

In April 2014, the United States Trade Representative (USTR) listed India on its Special 301 Priority Watch List, following India’s refusal to grant a patent over the leukemia drug Gleevec and its compulsory licensing of the cancer drug Nexavar. USTR also undertook an out-of-cycle review of India’s intellectual property laws, to determine whether or not to upgrade India to the more serious Priority Foreign Country status, which would potentially trigger retaliation through withdrawal of GSP benefits. In response, India threatened to take the United States to the World Trade Organization’s Dispute Settlement Body over Special 301. This article examines whether such a case would succeed, taking three lines of inquiry. The first is whether or not the Special 301 procedure violates the procedural obligations under article 23 of the Dispute Settlement Understanding (DSU). The second is whether or not any related withdrawal of GSP benefits would be in line with the Enabling Clause. Finally, the article examines whether there are substantive limitations on intellectual property protections under TRIPS which could be used to challenge the validity of Special 301. It concludes that some, but not all, aspects of Special 301 may be inconsistent with WTO obligations.

This paper argues that GSP labour rights conditionality is in conformity with WTO law. This hinges on the critical question of whether the realisation of labour standards can meet a ‘development need,’ a term considered by the WTO Appellate Body report in the EC – Tariffs Preferences case, but yet undefined in WTO law. This paper first analyses the framework against which the lawfulness of non-trade conditions must be assessed: Article XX GATT and the WTO’s Enabling Clause. It then examines the meaning of ‘development needs.’ Based on a contemporary understanding of development theory, and consistent with the WTO Appellate Body’s own jurisprudence, this paper rejects the proposition that ‘development needs’ should be defined narrowly, in pure economic terms. Instead, it makes the case for an expansive yet nuanced understanding of this critical term which, properly construed, should be seen as including social and environmental concerns. The paper then assesses the legitimacy of labour rights conditionality as a means to advance development needs. The analysis demonstrates that the fulfilment of labour rights can be both constitutive of and instrumental to development. This makes GSP trade-labour linkage and differentiation between developing countries based on compliance with certain labour standards, in principle, permissible under WTO law. Finally, this paper addresses some of the technical aspects of labour conditionality schemes and suggests where they may need strengthening.

This paper intends to show the legal relationship between paragraph 2 (c) of Enabling Clause and GATT Article XXIV as RTAs among developing countries are concerned. GATT Article XXIV justifies MFN departure of customs unions and free trade agreements if some requirements are met. Paragraph 2© of Enabling Clause waives these requirements where developing countries form regional trade arrangements among themselves. The paper has no intention to discuss RTAs among developing countries in an econometric context. Nor it is to examine the proxies for welfare impacts of the RTAs involving only developing countries in a comparative analysis with the RTAs among developed countries or those between developed and developing countries. Instead, the paper intends to focus mainly on the way these two legal bodies, mainly Enabling Clause 2 (c) and GATT Article XXIV compete in providing legal cover for RTAs among developing countries. The paper concludes that regional trade agreements among developing countries should be subject to both legal covers successively; starting with Enabling Clause 2(c) pending graduation in accordance with the requirements of paragraph 7 of the Enabling Clause. With graduation, the legal coverage automatically shifts to GATT Article XXIV. The paper, however, acknowledges the lack of clarity in the graduation criteria embedded in the language of Enabling Clause paragraph 7 which is equally cumbersome for other areas of S&D.

The relationship between human rights law and international trade law has been a point of discussion for many years. An explicit reference to human rights is nowhere to be found in the WTO Agreement, but the ruling of the Appellate Body in the EC-Tariff Preferences case has made an important contribution to the implicit incorporation of human rights in trade policies and trade disputes. In this case, the Appellate Body laid down four guidelines developed countries need to take into account when granting preferential treatment to developing countries under the Enabling Clause. This paper discusses the application of these guidelines by the European Communities in its most recent Generalized System of Preferences (GSP), known as GSP Plus. It is shown that, although at first sight the human rights conditionalities incorporated in GSP Plus appear to be aligned with the guidelines of the Appellate Body, and therefore to support the view that successful implicit incorporation of human rights in the WTO Agreement is possible, GSP Plus unfortunately allows too much discretion in the trade policies of the EC. This point is illustrated by a short case study on granting preferential treatment to Sri Lanka under the GSP Plus programme. Despite this finding, it is argued that the ruling was an important step for the legitimate incorporation of human rights in GSP programmes, but that a new trade dispute on GSP Plus is needed, in order for the Appellate Body to clarify and tighten its own guidelines.

While most economists criticise the GSP for a number of (good) reasons, all preference donors and receivers profess their commitment to what they consider as a tool for developing countries ‘to secure a share in the growth of world trade’. The political support given by both receivers and donors to preferences as an economic development tool means that they will remain part of the landscape of international trade regulation for the foreseeable future.Under the WTO Enabling Clause, such preferences are allowed if they are generalized, non-reciprocal and non-discriminatory. However, tariff preferences are also often withdrawn on dubious grounds and without due process. This reduces much of their potential value, because traders and investors lack the predictability and security necessary to make long term business decisions based on the market access opportunities that these preferences provide. Indeed, the lack of predictability and security of unilateral tariff preference schemes has been one of the reasons that some developing countries have concluded regional trade agreements (RTAs) under Article XXIV GATT, despite the sometimes heavy price of reciprocity.In this paper we offer an alternative. Based on a legal examination of tariff preference schemes and their limitations (coverage, graduation, safeguards, and conditionality), we make three practical proposals to provide better security and predictability for both preference beneficiaries and donors:1. a binding of GSP schemes under Article II GATT (negotiated under Article XXVIII GATT)2. as an alternative, a dispute settlement regime specifically targeted at unbound preferences, and3. legally secure rules on limitations to GSP programs, including transparent and objective graduation criteria, which may be bound or unbound.Contrary to what is often assumed, this paper demonstrates that it is perfectly possible to bind tariff preferences and graduation criteria under existing WTO rules. All it takes is sufficient political will.Presented at the SIEL 2010 Conference in Barcelona.

Given different legal regimes which govern the global and regional trading systems, the WTO as such cannot stop the proliferation of RTAs. Nevertheless, the WTO can oversee them through its political and judicial review procedures. Notably, Article XXIV of the GATT, Article V of the GATS and the Enabling Clause contain certain procedural requirements for notification and multilateral review of RTAs concluded by WTO members (political track). In addition, RTAs may be challenged in WTO dispute settlement procedures (judicial track). This paper examines legal provisions and practice of the WTO review mechanisms, explores possible remedies for WTO-inconsistent RTAs, analyzes the transparency mechanism for RTAs, and in particular specific issues of linkage with the WTO judicial review procedures and the possibility of extending the scope of the transparency mechanism to the post-formation period of notified RTAs.

In EC Tariff Preferences, the Appellate Body held that the WTO Enabling Clause permitted developed countries to grant better tariff treatment to some developing countries than to others, subject to certain conditions. It held further that these conditions were not met by the EU's so-called 'drugs arrangement', a system of additional preferences (normally duty free treatment) for certain countries which the EU had determined were in need of special tariff preferences, thanks to their involvement in combating the production and trafficking of narcotics. In response to this ruling, when the EU renewed its GSP programme in 2005, it replaced its drugs arrangement and two similar, though less generous, labour and environment arrangements with a new arrangement popularly known as the 'GSP+ arrangement'. Under this arrangement, additional tariff preferences (normally duty free treatment), were made available to developing countries committing to ratify and implement a list of human rights and good governance conventions. According to the EU, the GSP+ arrangement complies with the Appellate Body's interpretation of the Enabling Clause. This article argues that it does not. This is primarily because of the substantive criteria chosen by the EU to select GSP+ beneficiaries, which do not meet the Appellate Body's criteria for differential tariff treatment of developing countries. Second, it is because the EU's requirement that would-be beneficiaries must have applied by a certain date, replicates the problem of the 'closed list' of beneficiaries that was fatal to the earlier incarnation of the EU's GSP program. The article concludes with some suggestions for designing a GSP+ arrangement more likely to meet the Appellate Body's conditions than the EU's present arrangement. , Oxford University Press.

Preferential arrangements (bilateral and multilateral free trade areas and GSP systems (preferences for developing countries)) are emerging everywhere in the world trading system and are causing concern because they discriminate against non-members and add complexity, distortions and inconsistency to the global system. Rules of origin (ROOs) linked to these arrangements are a significant part of the problem. More and more they have become the source in their own right of distortions in trade patterns, complexity, non-transparency and inconsistency. This essay argues that WTO members should authorize negotiations seeking to harmonize preferential ROOs (rules of origin linked to preferential arrangements) around core principles consistent with WTO rules. The harmonized preferential ROOs should be aligned as much as possible with the harmonized regime for non-preferential ROOs (rules of origin linked to non-preferential arrangements) likely to emerge from the current hold-over WTO negotiations authorized by the Uruguay Round ROOs Agreement. They should be nonrestrictive, based essentially on the principle that substantial transformation confers origin, and - except where developing countries benefit - should not allow cumulation (treating product components from within the preferential region as locally produced). Existing preferential ROOs not consistent with these principles could be argued to violate Article XXIV, and in some cases Article III, of GATT 1994. In the case of developing country preferences, bilateral cumulation in GSP systems could be argued to violate the Enabling Clause.

This paper contemplates some key aspects of the overall flexibility question in a simplified and reorganised New Constitutional Treaty (NCT). It is limited to discussion on the location of the enhanced co-operation provisions, on whether and what type of opt-out or derogation arrangements should survive under the new constitutional regime, and finally, on whether or not the NCT should prohibit the conclusion of international agreements between the Member States (some or all of them) outside the institutional framework of the EU. The paper accepts a positive synergy between the principles of flexibility and constitutionalism, viewing flexibility as a normative principle of governance. It concludes that the enhanced co-operation, mainstreamed with the Union system, should be included in the Part One of the NCT among the provisions on constitutional structure. It would be useful to explain to the citizens what this concept means (definitional clause) together with references to the nature of the enhanced co-operation (enabling clause). As for the opt-out arrangements and derogation, it seems unnecessary to include them in the NCT itself. It should suffice to provide for these either in Part Two or in a set of protocols.