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Since the formation of the Organization of African Unity (OAU), African countries envisage regional integration to enhance trade among themselves. This effort was preceded by the formation of the sub-regional economic groups which serve as building blocks towards a larger integration. Africa Continental Free Trade Agreement (hereinafter AfCFTA) came into force in May 2019. As per the procedural requirements of the WTO, AfCFTA should be notified either to WTO’s Committee on Trade and Development (CTD) if AfCFTA opts to use enabling clause exception; or it should be notified to the Committee on Regional Trade Agreement if AfCFTA opts to use Article XXIV of GATT/WTO exception. This comment examines under which exception AfCFTA should notify its integration. I argue that it is better for AfCFTA to notify its integration under Article XXIV of GATT/WTO to the Committee on Regional Trade Agreement rather than under enabling clause to the Committee on Trade and Development.

Author(s): Hill, Justin J. | Abstract: The United States Constitution guarantees all citizens the same basic rights and privileges; however, citizens with criminal convictions are subject to a number of regulatory restrictions on fundamental rights (such as disenfranchisement, ineligibility for public housing and benefits, employment discrimination, etc.) regardless of the seriousness of the offense. These restrictions are called collateral consequences, and they effectively relegate citizens with criminal convictions to a state of second-class citizenship. The U.S. Supreme Court has published several opinions construing Section 2 of the Thirteenth Amendment, also known as the Enabling Clause, as not only abolishing slavery but also empowering Congress to eradicate all badges and incidents of slavery. However,nthe U.S. Supreme Court has provided little guidance on what constitutes the badges and incidents of slavery, and Congress has scarcely used its authority under the Enabling Clause. The countless collateral consequences that follow criminal convictions are many of the same “badges and incidents of slavery” imposed on slaves during the institution of slavery, and Congress has the authority to eradicate them via the Enabling Clause.This Comment urges Congress to eliminate all collateral consequences that follow criminal convictions and puts forth a three-part analysis to aid courts in identifying modern badges and incidents of slavery.

Since the US Presidential Proclamation terminating India status as a Generalized System of Preferences (GSP) beneficiary with effect from 5 June 2019, questions are raised on the WTO legitimacy of such an action. The US measure, which appears to have a punitive element—a move precipitated by lack of reciprocity from India by not providing ‘equitable and reasonable access’ for US products in Indian markets—challenges the fundamentally premise of the GSP schemes. Since the GSP schemes are established to provide economic and developmental opportunities for developing countries, and once established must be administered as per the 1979 General Agreement on Tariffs and Trade Enabling Clause, meaning it must be on a ‘generalised’, ‘non-reciprocal’ and ‘non-discriminatory’ basis, can India raise a legitimate challenge against the US action at the WTO Dispute Settlement Body? Or can the GSP schemes, being voluntary and unilaterally administered, be structured by developed countries as trade policy tools with stringent trade and non-trade conditionalities? The decision of the Appellate Body in European Communities—Tariff Preferences, the contested nature of the Enabling Clause and the heterogeneous nature of developing countries at the WTO makes the interpretation knotty. In this context, this article provides a brief comment on the legal basis of the Enabling Clause in the WTO framework and the legitimacy of the US action of termination of India from the beneficiary status. Keeping aside the legal question, the author is also of the view that time is ripe for India to consider ‘graduating’ itself from such preferential arrangements and engage in binding obligations that are reciprocal and sustainable. JEL Codes: K33, O24

The quest for universality in international economic law has met many obstacles. This article begins from the proposition that there are various ways to conceive of universality in international law, for example whether the rules are accepted widely among states (omnipresence) or whether they are broadly coherent (generality). Homing in on trade and investment law, the article assesses how each of these areas has functioned as a testing ground for these different conceptions. An in-built quasi-universality characterizes international trade law with the WTO as a seemingly centralized universal institution. Such universality, however, has often been achieved through differentiation of rights and obligations (e.g., the Enabling Clause and regional trade agreements). In investment law, attempts at universalization through the construction of centralized institutions have failed. Nevertheless, certain common standards have emerged in this fragmented regime. There is also a debate around the use of the MFN clause as a universalizing tool and renewed efforts to universalize investment law are afoot. More generally, it is clear that there is little appetite for codification of international economic law, and that states wish to control its content through the conclusion of treaties. In the final analysis, this article asks whether it is time to conceive of universality differently, and particularly whether equity and collective preferences should be a more central part of the quest.

The legal sanctity of the trade regionalism under GATT/WTO comes from Article XXIV of GATT 1947, which provides the general framework for the formation and territorial application of frontier tariff case in the form of the Customs Union and Free-trade Areas. Article XXIV defines regional trade arrangement in Paragraph 2 as “…a customs territory shall be understood to mean any territory with respect to which separate tariffs or other regulations of commerce are maintained for a substantial part of the trade of such territory with other territories.” In addition to the Article XXIV of GATT, Enabling Clause or 1979 GATT decision “Differential and more favourable treatment reciprocity and fuller participation of developing countries” along with Article V of GATS also provide for the regional arrangement in the form of preferential trade in goods amongst developing countries and arrangement in cases of services, respectively. This chapter along with covering the theoretical, conceptual and legal nuances of trade regionalism deliberates on the regulation of trade regionalism across the globe. Such regulation is by means of internal, external and review & reporting requirements as emanating from Articles XXIV and various decisions of GATT/WTO.

La Organización Mundial de Comercio (OMC) es la institución que ejecuta el régimen internacional del comercio que se configuró luego de finalizada la Segunda Guerra Mundial como uno de los mecanismos para crear las condiciones económicas y políticas que permitan evitar futuros enfrentamientos. Los países en desarrollo enfrentaron varias limitaciones al inicio del GATT y paulatinamente fueron consiguiendo importantes conquistas que les permitieron participar en el sistema multilateral de comercio de manera más justa y equitativa. El Trato Especial y Diferenciado (TED) y el Sistema Generalizado de Preferencias (SGP), amparados por la Cláusula de Habilitación, fueron los avances más importantes conseguidos por los países en desarrollo en el marco del GATT. Con la creación de la OMC, dichas conquistas se fueron consolidando e institucionalizando. La denominada Ronda de Doha para el Desarrollo, que inició en 2001, incorporó varias iniciativas positivas para los países en desarrollo y fortaleció el TED. Desafortunadamente, dicha ronda de negociaciones presenta un estancamiento desde hace varios años, lo que ha incidido en la proliferación de acuerdos comerciales bilaterales, regionales e interregionales que bien podrían mermar al sistema multilateral de comercio. Los países desarrollados han expresado su interés para que las negociaciones en la Ronda de Doha terminen por la falta de consenso y, en su lugar, se aborden nuevos temas en la agenda multilateral que respondan a las necesidades del mundo actual. Esto podría significar un importante retroceso en la participación de los países en desarrollo en el régimen multilateral de comercio.Revista ciencia, cultura y sociedad Vol. 4 No. 2 julio-diciembre 2017; 42-53

This article examines conditionalities in the Generalized System of Preferences (GSP) in light of the European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries (EC – Tariff Preferences) case at the World Trade Organization (WTO). The article largely undertakes this examination from the point of view of developing countries. It mainly examines the issue of discrimination in conditionalities since this was the principal question raised in the EC – Tariff Preferences case and makes suggestions regarding the regulation of conditionalities. In doing so, the article follows two trajectories: first, it makes suggestions for the WTO panels and Appellate Body, and, second, it makes suggestions for GSP donors, by analyzing the new European GSP + Scheme and by drawing inspiration from conditionalities in the loans granted by the World Bank.

In the wake of the EU’s 2015/16 refugee crisis issue-linkage has made a comeback in the form of the EU Compacts. In an updated version of trade conditionality, the EU-Jordan Compact links refugee employment to a duty-free and quota-free (DFQF) preference under the EU Everything-but-Arms (EBA) for goods produced with up to 25% of refugee labor. The rationale underlying this ‘new approach’ to refugee protection, relates back to Migration Partnership Framework and the Global Compacts’ vision to operationalize the ‘multidimensional reality’ of migration and flight, including by linking refugee protection to non-refugee specific policies, including the EU’s Trade-for-All strategy of ‘value-based’ trade. Yet, precisely the link to trade informing this shift away from resettlement towards one of creating livelihood opportunities for refugees to remain in the region requires adjustments, which are so country-specific that they might infringe on the WTO’s special and differential treatment (SDT). The research question informing this chapter is under which conditions, the EU’s Generalized System of Preferences (GSP) under the WTO Enabling Clause which justifies trade preferences for ‘vulnerable developing countries’ can be used to compensate first-safe countries for their exceptionally important intakes of refugees. Without clear criteria to justify why, when and which EU neighbourhood country deserve a more favourable treatment than other ‘particularly affected’ ones, similarly situated countries could have a claim under the WTO’s EC-Tariff Treatment interpretation of the WTO SDT. Such legal creativity, even if justified by a time-limited ‘crisis’ narrative, raises claims under WTO law. The focus of this chapter is laid on the legitimacy of the EU-Jordan Compact under WTO law and its congruence with the EU Neighbourhood Policy. To bypass such concerns, and to prevent tertiary educated refugees from being held hostage in the export-oriented garment industry, we suggest adding a trade-in-services dimension to the export-based refugee employment program, by linking EU service provision in Jordan’s humanitarian infrastructure to Syrian employment in these sectors.

Underground utility detection survey has been practiced in Malaysia for a long time but it was never regulated. While there are guidelines to govern the practice of utility detection survey, an enabling clause is required to regulate the practice. The aim of this paper is to study the available subsurface asset management framework and to propose a framework for subsurface asset management in Malaysia. The methodology to carry out this research shall involve data collections from stakeholders in the form of interviews, questionnaires and discussions. A case study of an underground utility detection survey shall provide data on the process flow a project which involves stakeholders and the authorities. The final input shall be in the form of intellectual discourses with expert committees related to subsurface utility survey and policy makers. From the findings, it was observed that there were significant discrepancies between the engineering and cadastral survey records. While the engineering survey information related to subsurface utility was up to date, the cadastral survey record was never updated. Furthermore, it was observed that the is no enabling clause in existence to govern the management of subsurface assets. The result of this research is a proposed framework for subsurface asset management based on the data collected. In conclusion, it was recommended for the subsurface asset management framework to be tested in the real working environment and to continue with the efforts to realise the framework.

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 leukaemia 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 Generalized System of Preferences (GSP) benefits. In response, India threatened to take the USA to the World Trade Organization’s (WTO’s) Dispute Settlement Body over Special 301. This article examines whether such a challenge to Special 301 in the WTO would succeed, both in the India context and more generally. It takes 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.

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.

INTRODUCTION In addition to the ‘general and security exceptions’ and the ‘economic emergency exceptions’ discussed in Chapters 8 and 9 respectively, WTO law also provides for ‘regional trade exceptions’. These exceptions allow Members to adopt measures that would otherwise be WTO-inconsistent, when they are in the pursuit of economic integration with other countries. While, in the past, the term ‘regional trade exceptions’ as well as the term ‘regional trade agreements’ (RTAs) described well the reality they referred to, in recent years these terms have given rise to some confusion. In the past, the term ‘regional trade agreements’ was used to refer to the economic integration efforts between adjacent countries or countries in the same region. Good examples of such regional economic integration efforts are the North American Free Trade Agreement , the Southern Common Market (MERCOSUR) Agreement and the ASEAN Free Trade Area (AFTA) Agreement . To the extent that these and other regional economic integration efforts involved GATT 1994 or GATS-inconsistent measures, these measures could – under specific conditions – be justified under the regional trade exceptions of the GATT 1994 and the GATS. In recent years, however, the countries involved in economic integration efforts are often countries or groups of countries from different regions . Consider, for example, the European Union–South Korea Free Trade Agreement , the United States–Colombia Trade Promotion Agreement and the India–MERCOSUR Preferential Trade Agreement . Instead of referring to these agreements as ‘regional trade agreements’, they are often referred to as ‘preferential trade agreements’ (PTAs). The WTO World Trade Report 2011 stated: One half of the PTAs currently in force are not strictly ‘regional’. The advent of cross-regional PTAs has been particularly pronounced in the last decade. The trend towards a broader geographical scope of PTAs is even more pronounced for those PTAs that are currently under negotiation or have recently been signed (but are not yet in force). Practically all of these are of the cross-regional type. However, as WTO Members and the WTO Secretariat continue to use the term ‘regional trade agreements’, this book also continues to use this term, and discusses in this chapter the ‘regional trade exceptions’, even though the word ‘regional’ is almost a misnomer because such economic integration agreements often no longer have the traditional geographical connotation. The ‘regional trade exceptions’ are set out in Article XXIV and the Enabling Clause of the GATT 1994, and Article V of the GATS.

Globalization has propelled a mass influx of trading, opportunities, wealth, and cross-border relations. But, it has also added distance to the seemingly endless gap between developed and developing nations. Amidst this economic disparity, trade preferences present a solution to alleviate developing country dissatisfaction by providing access to international markets. It finds legitimacy in the Enabling Clause, which departs from the General Agreement on Tariffs and Trade’s principles of non-discrimination and reciprocity, and ensures that special and differential treatment is accorded to respond positively to the ‘development, financial and trade needs’ of developing countries. The focus of this article will be the European Union’s (EU) GSP+ Scheme that assists the entry of vulnerable economies to the EU’s international market. Contravening the rule against reciprocity, EU Regulation 978/2012 mandates the fulfilment of specific conditions before the granting of concessions. These conditions have the effect of increasing the burdens and responsibilities of vulnerable economies. Despite the Regulation’s apparent magnanimity, it is unilateral and fails to inquire into the real ‘development, financial and trade needs’ in developing economies. As a result, due to a lack of bargaining power, they find themselves compelled to fulfil EU obligations, which may have little or no bearing to the real causes for concern. This article endeavours to examine the legality of the GSP+ conditions in light of the Enabling Clause.

This paper empirically investigates how far free trade agreements (FTAs) successfully lower tariff rates and non-tariff barriers (NTBs) for manufacturing industries by employing the bilateral tariff and NTB data in time series for countries in the world. We find that FTAs under GATT Article XXIV and the Enabling Clause are associated with the 2.0 and 1.5 % lower tariff rates, respectively. In the case of NTBs, on the other hand, their respective effects are 2.1 and 2.4 %. Also, compared with these effects of FTAs, WTO membership does not have large effects on tariff rates but does have them on NTBs. These results provide important implication for the literature on the numerical assessment of FTAs.

1. IntroductionGlobal trade governance has evolved substantially in the last 25 years. With the establishment of the World Trade Organisation (WTO) in the mid-1990s, a comprehensive set of binding and enforceable agreements came into force, spanning more than 100 countries and customs territories, and covering most world trade flows (at least of goods). This was a major achievement for nondiscriminatory trade.1 The world seemed to be moving toward an overarching, global, and nondiscriminatory framework that would eventually cover all countries (through their accession to the WTO) and all aspects of trade (through negotiations among WTO members for the further liberalization of trade in goods and services and development of all the required and related rules).This has not happened, however. Instead, discriminatory trade agreements (DTAs)2 have proliferated while the WTO Doha Round of trade negotiations has languished for over 12 years. The increasing number and scope of DTAs is fast reshaping the architecture of the world trading system and the trading environment for developing countries. This is particularly relevant for countries such as Pakistan, which are not party to many DTAs. Moreover, the integration of these diverse agreements into a multilateral framework that facilitates the expansion of trade on beneficial terms for all is one of the main challenges facing the world trading system.This paper is an attempt to better understand the trend of DTAs over the last 25 years while drawing lessons for Pakistan. For the purposes of this analysis, we divide all DTAs into two broad categories: (i) those based on reciprocity among their members, i.e., regional trade agreements (RTAs);3 and (ii) those under which one country or defined group of countries offers nonreciprocal trade preferences to another, i.e., preferential trade agreements (PTAs).4Given the depth and breadth of the subject, this paper cannot claim to be comprehensive and exhaustive. Rather, it aims to provide an overall picture and broad-brush analysis to facilitate discussion and further targeted research. Sections 2 and 3 analyze the evolution of RTAs and PTAs, respectively. We trace key developments in both over the last 25 years or so, leading up to the present and identifying the main players, beneficiaries, features, and trends. Section 4 briefly discusses the so-called "mega-regionals," i.e., the proposed Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (T-TIP). Section 5 highlights the specific implications of RTAs and PTAs for Pakistan and then concludes the study by offering some policy suggestions.2. RTAs: Beyond Numbers5As of 31 July 2013, the General Agreement on Tariffs and Trade (GATT)/WTO has received some 575 RTA notifications (counting goods, services, and accessions separately) (WTO, 2014). Of these, 408 notifications were made under Article XXIV of GATT 1947 or GATT 1994, 38 under the Enabling Clause, and 129 under Article V of the General Agreement on Trade in Services. Of these 575 RTAs, 379 were in force at the time.However, the number of RTAs in force at the time of writing is 278 (Figure 1). In addition to bringing out the general difficulty of counting and tracking RTA activity precisely, this brings home a very important point. Not all announced RTAs see the light of day. Only about half complete the negotiations stage, reach a final agreement, undergo domestic ratification, and are finally implemented by the participants. While the WTO can rightly be faulted for slow progress, the record of RTAs is not a shining example of success either.increasingly common in the early 1990s when an unusually high number of agreements entered into force-26 between 1990 and 1994 alone, compared to just 24 up until 1990. The number of RTA notifications continued to increase in the second half of the 1990s. The mid-2000s onward saw the largest number of RTAs notified and coming into force to date. …

Numerous WTO members pursue regional economic integration with both other members and non-WTO-members. The resulting derogation from the most-favoured-nation principle needs to be justified in accordance with the relevant WTO provisions. Regional integration in the service sector is expressly allowed between WTO and non-WTO members pursuant to GATS Article V. In the absence of clear regulation, it has been questioned whether the same is true for regional trade agreements (RTAs) covering trade in goods. Providing a comprehensive interpretation, this paper argues that neither GATT Article XXIV nor the Enabling Clause require the WTO membership of all the parties to an RTA.

The Single Supervisory Mechanism is an evolutionary reform for the supervision of credit institutions in Europe. It establishes a centralized supervision for credit institutions under the mandate of the European Central Bank (ECB). The founding Regulation, adopted in October 2013, provides for new and extensive tasks for the ECB and powers of supervision over credit institutions established participating Member States. While many challenges are open to debate, this paper contends that the SSM will provide the essential tools to shape a new Stability Union where institutionalization, centralization, integration, and top-down supervision take place. However, it is still essential that the ECB exercises its mandate correctly and is not reluctant as to the exercise of its powers. This article will examine some critical SSM regulatory features. These suggest that the SSM will be an essential structure to create a new Stability Union. In particular, the use of the enabling clause (Article 127(6) TFEU), allocati...

Trade sanctions aimed at protecting and promoting human rights can no longer be considered (if they ever could have been) a proper instrument to fight human rights violation in other states. There appears to be a reasonable alternative in other international trade measures, which also may be applied in accordance with the law of the World Trade Organization. Those measures can be divided into two categories: trade incentives adopted under the Enabling Clause and obligation waivers. This article seeks to explore whether either of those legal instruments has the potential to play a significant role in enhancing human rights standards worldwide in terms of their availability and effectiveness.

Disagreement between the parties involved in regional trade agreements (RTAs) about the legal basis of RTAs has led to dual notifications of some RTAs to the WTO. Dually notified RTAs are characterized by non-reciprocal trade liberalization between developing and developed RTA parties. If all the parties of a dually notified RTA are 'developing' countries, the RTA can find its legal basis both under Article XXIV and the Enabling Clause. In that case, the Committee on Regional Trade Agreements (CRTA) and the Committee on Trade and Development (CTD) may both serve as forums for reviewing dually notified RTAs under the Transparency Mechanism for Regional Trade Agreements. However, if one of the parties of a dually notified RTA is a 'developed' country, the RTA's legal basis is solely in Article XXIV. To determine the development status of the parties to a dually notified RTA, the WTO should require the RTA party notifying under Article XXIV to disclose its economic development status for the purpose of the WTO review based on the 'self-selection' principle. If the party notifying under Article XXIV declares itself a 'developed' country, the CRTA would be the sole forum for the review. However, if the party declares itself a 'developing' country, both the CRTA and the CTD may serve as appropriate forums for the review. A proposal made during the Doha Round to require all RTA parties to make a joint notification under a single legal basis is inconsistent with the WTO law and would not serve the purpose of effective review of RTAs under the WTO. The Author 2012. Published by Oxford University Press. All rights reserved., Oxford University Press.

Complicated web of hub-and-spoke type of overlapping free trade agreements (FTAs) can result in high costs for verifying rules of origin (RoO) and trade diversion or suppression effects. This paper attempts to provide best practices for regional trade agreements (RTAs) to enhance global free trade by mitigating these negative effects. By adopting a gravity regression analysis, we quantitatively estimate the trade creation and diversion effects of cumulated RoO (bilateral, diagonal, and full cumulation) for RTAs established under GATT Article XXIV and under the Enabling Clause. We find that (i) RTAs, in general, create trade among members and divert trade from nonmembers, whereby the net trade-enhancing effect is rather weak; (ii) RTAs should be established under the comprehensive GATT Article XXIV, rather than the piecemeal Enabling Clause; and (iii) full cumulation is the most optimal provision in terms of creating the most intra-bloc trade and diverting the least extra-bloc trade. Overall, we strongly suggest that RTAs should employ full cumulation of RoO under GATT Article XXIV.

The European Union has a long history of partnership with the countries of the Africa, Caribbean and Pacific (ACP) grouping, including trade relations stimulated by highly preferential market access to the EU under the Cotonou Agreement or the Everything but Arms (EBA) initiative. Over 95% of ACP exports entered the EU duty-free in 2006. However, despite this preferential treatment, ACP trade with the EU has not diversified and has steadily declined over the last 30 years. Clearly, preferential market access alone has not been adequate to stimulate export-led growth in the ACP. At the same time, non-ACP developing countries have not been granted similar treatment. This is incompatible with the principle of most favoured nation (MFN) treatment set out in Article I of the GATT and with the ‘Enabling Clause’ covering special treatment of developing countries. The EU was therefore forced to seek a series of waivers from other World Trade Organisation members to enable its special trade regime for the ACP to continue. The latest of these waivers was only agreed in Doha in

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.

El factor que actualmente condiciona y determina el ejercicio de las funciones públicas de prevención y corrección del riesgo es la existencia de un presupuesto de hecho de naturaleza científica y técnica como un factor incontrolable para la Administración, cuyo dominio directo está en manos de sujetos privados especializados, de profesionales y del propio mercado. La ordenación jurídica se vuelve más procedimental y formalista, pero también más principialista y finalista que son las notas que caracterizan a un Derecho orientado antes a los resultados que a los medios. La mayor labilidad del principio de legalidad alcanza su mayor intensidad en supuestos de riesgos graves y desconocidos por la emergencia del llamado principio de precaución como cláusula habilitadora de medidas excepcionales frente a los riesgos ambientales e industriales.

This chapter analyses one of the most important WTO disputes till date—the EC—Tariff Preferences or the EC—GSP dispute, as it is more popularly known. The dispute originated because of competitive disadvantage to India’s textile sector vis-a-vis Pakistan, on account of an EC regulation on GSP scheme. The chapter delves into the factual background leading to the filing of the dispute before the WTO, including the failure of diplomatic efforts that were made in an attempt to resolve the issue without litigation. India faced a major dilemma while initiating this dispute because it was challenging a measure that was, in fact, beneficial to other developing countries who were India’s partners at the Doha negotiations, and India itself had been a forerunner in ensuring special treatment for developing countries in the WTO system. However, India filed this dispute to protest against the discriminatory manner in which GSP benefits were given for drug arrangements, in view of the fact that the EC failed to mention the criteria on the basis of which the benefits were given to a select few developing countries. Subsequently, the chapter focuses on the analysis given by the Panel and Appellate Body on three issues: (i) the relationship between the Enabling Clause and the MFN Clause, (ii) the party having the burden to prove that the Enabling Clause applies for a particular measure, and (iii) the legality of the EC drug arrangements with respect to GSP and the Enabling Clause. The most important jurisprudential contribution of this case is the Appellate Body’s interpretation of the Enabling Clause. The chapter further highlights the consequences of this decision on the EC’s revisions of its GSP scheme as well as the competition between India and Pakistan in the textile and clothing sector. Finally, the chapter takes a critical look at GSP schemes, as they exist today and their outlook for the future, from the perspective of trade relations between the developed and developing Members of the WTO.

In this chapter, the author recounts his experience of dealing with some of India’s early disputes at the WTO and the importance of these disputes in WTO jurisprudence. This chapter focuses on five landmark WTO disputes in which India was a party, namely, EC—Bed Linen, India—Autos, US—Offset Act (Byrd Amendment), EC—Tariff Preferences and Turkey—Textiles. These disputes pertained to issues concerning trading in sectors that are crucial to India’s economy such as antidumping measures on India’s export of textiles and clothing, foreign investment in automobiles and removal of quantitative restrictions on nearly one-fourth of India’s tariff lines. The decisions contributed in the shaping of new jurisprudential concepts such as prohibition of ‘zeroing’ in dumping calculations, application of non-discrimination in the Enabling Clause, application of res judicata and judicial economy, etc., in WTO dispute settlement proceeding. The author also notes that that winning a WTO dispute case is only a part of the process, but the ultimate success depends on both law and diplomacy. This chapter also provides practical guidance for WTO members in regard to identification and preparation of claims at the time of panel request and other related matters.

If the primary goals of the AEC are to create a single production base and a single market, how well has ASEAN laid down the legal and institutional foundations (as described above) for pursuing those goals? An overview of how legal and institutional factors currently interact in ASEAN indicate that the regional bloc has major deficiencies in its operational infrastructure. Of note is the absence of certain policy areas from binding obligations by ASEAN treaties like the ATIGA, such as competition, government procurement, movement of unskilled labor, economic aspects of environmental policy, intellectual property, and the like. In any event, this survey of critical nexuses of law and policy covers areas where, in the authors' view, stronger obligations have been undertaken by the ASEAN member states with regard to the AEC. In conducting this survey, the authors compare the AEC with the most well-known regional economic integration projects, the EU and NAFTA. The EU represents an integration model with very strong and active regional institutions formulating and implementing policy in the bloc. On the other hand, NAFTA represents an integration model based on detailed agreements and robust dispute resolution processes that implement those agreements. The authors offer these comparisons with the EU and NAFTA to provide meaningful terms of reference, not necessarily to posit that the AEC should follow either of these examples. Indeed, the authors fully expect that ASEAN's leaders will choose a regional economic integration model that will follow the best interests of ASEAN's citizens, regardless of whether the foundational sources of that model come from the EU, NAFTA, or elsewhere. Since we need to start the discussion with common reference points, we start with the EU and NAFTA. The ASEAN Charter and ASEAN institutions The first mention of the objectives of economic integration in the ASEAN Charter is found in paragraph 5 of Article 1: Purposes of chapter 1 of the Charter: 5. To create a single market and production base which is stable, prosperous, highly competitive and economically integrated with effective facilitation for trade and investment in which there is free flow of goods, services and investment; facilitated movement of business persons, professionals, talents and labour; and freer flow of capital.

Introduction The WTO case brought by India in 2002 to challenge aspects of the European Communities' Generalized System of Preferences (GSP) brings fresh scrutiny to a policy area that has received little attention in recent years – trade preferences for developing countries. The idea for such preferences emerged from the first United Nations Conference on Trade and Development (UNCTAD) in 1964. The ensuing negotiations led to Resolution 21(ii) at the second session of UNCTAD in 1968, acknowledging “unanimous agreement” in favor of the establishment of preferential arrangements. Tariff discrimination violates the most-favored nation (MFN) obligation of General Agreement on Tariffs and Trade (GATT) Art. I, however, and thus the legal authority for preferential tariff schemes had to await a GATT waiver of this obligation, which came in 1971. The waiver was to expire after 10 years, but the authority for preferences was extended by the GATT Contracting Parties Decision of November 28, 1979 on Differential and More Favorable Treatment, Reciprocity and Fuller Participation of Developing Countries, popularly known as the “Enabling Clause,” and now incorporated into the law of the WTO along with the GATT itself. While trade discrimination favoring developing countries is the essence of any GSP scheme, India's WTO complaint raised the question of what type of discrimination is permissible – must all developing countries be treated alike, or can preference-granting nations discriminate among them based on various sorts of criteria?

The Generalized System of Preferences (GSP), authorized by the 1979 Enabling Clause under GATT, allows importing nations to extend preferential tariff treatment to the products of developing countries. India recently brought a successful WTO complaint challenging aspects of the EC preference scheme, claiming that it impermissibly discriminated among developing countries. We analyze the law and economics of discrimination within GSP schemes, assessing the implications of the Appellate Body decision in the case brought by India, and noting the economic costs and benefits of imposing tight nondiscrimination obligations on trade preferences for developing countries. We conclude that the case against discriminatory preferences is at best an uneasy one, both in legal and in economic terms. We also note that the ostensible justification for GSP schemes in the fist instance – to promote growth and development – is unlikely to be served terribly well by existing GSP policy.

With the accession of 10 new European Union member states in May 2004, much attention is being placed on the governance of European Community institutions. This article focuses specifically on discussions of European Central Bank (ECB) governance, particularly as regards the ECB?s amendment of voting modalities in the ECB?s governing council. The article first discusses the potential conflict between the political and economic weight of individual member states in the ECB?s monetary-decision-making process. It discusses both the complexity of the decision-making process in the current model, and compares existing models in different countries. The article then describes the new voting modalities scheme and analyzes the related pro and con arguments. While much criticism has been levied on the new voting system, the consensus reached by the EU after almost two years of discussion was an important achievement. On the other hand, the rather hectic timing of the reform?s adoption, with a deadline prior to EU enlargement, has sent a mixed signal to the accession candidates, which have been excluded fro its designing.

Like virtually all developed countries, the European Community grants special trade preferences to developing countries by way of a generalized scheme of preferences, known as a GSP program. In addition, the EC operates a rewards-based system of 'special incentive arrangements', according to which developing countries may apply for further preferences if they can demonstrate compliance with specified environmental and labour standards. This article assesses this system of positive conditionality in light of WTO rules. It begins with an outline of the EC's GSP program and a discussion of the relevant governing instruments, in particular the 1971 GSP Decision and the 1979 Enabling Clause. It then discusses certain systemic issues, such as the implications of the fact that GSP preferences are granted on a voluntary basis, and the present legal status of the Enabling Clause. The article next addresses the substantive question whether the description of trade preferences as 'generalized, non-reciprocal and non-discriminatory' in the GSP Decision represents a condition of their legality under the Enabling Clause. The final section of this article analyses the meaning of these terms, with special reference to their drafting history, and presents a view on the legality of the EC's system of positive conditionality. Copyright Oxford University Press 2003, Oxford University Press.

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.

More than four decades ago, John Jackson wrote that preferential arrangement may fade in importance. Contrary to Jackson’s statement, regionalism has grown in strength and Regional Trade Agreements (RTAs) are seen as an integral part of the multilateral trading system (MTS), and account for almost half of world trade, and operate alongside the trade agreements of the WTO. This chapter will consider the motives for the rise of regionalism. The chapter also considers the legal basis for RTAs under the multilateral system, and examine the relevant sections of Article XXIV of GATT 1994. Further, the requirements for notifying agreements under the Enabling Clause are reviewed. Finally, the chapter discusses the impact of the Turkey-Textiles case on the CLS and trade debate.

The Lome IV Convention, which expired on 29 February 2000, provided for non-reciprocal trade preferences in favour of ACP states. Such a trade regime is incompatible in principle with WTO rules and it could only be maintained because the WTO granted a waiver from the obligations of Article I GATT. The successor regime, the so-called Partnership Agreement between the Community, its Member States and the ACP States, provides for a preparatory period from 2000 to 2007, during which the non-reciprocal trade preferences in favour of the ACP will be maintained. A new WTO waiver will therefore be necessary until 2007. During the preparatory period, economic partnership agreements (EPA) will be negotiated between the Community and subgroups of ACP states, which will provide for reciprocal liberalization of substantially all trade. They will constitute free trade areas in the sense of Article XXIV GATT and a waiver will no longer be needed. For those ACP states not classified as least developed countries (LDC) and which are not in a position to negotiate an EPA, alternative trade arrrangements will need to be developed. The only viable alternative to an EPA would appear to be the integration of these countries into the Community's Generalized System of Preferences (GSP), which is authorized under WTO rules. For all LDCs, ACP states or otherwise, the Community will grant duty-free imports for essentially all products from 2005 at the latest. This differential treatment of LDCs is covered by the so-called Enabling Clause of the GATT of 1979 and a waiver is not required.

The establishment of the World Trade Organisation (WTO) in 1995 reflected and reinforced significant shifts in global orthodoxies in favour of the liberalisation of world trade, and posed problems for trading arrangements such as the Lome Conventions between the European Union (EU) and the 70 African, Caribbean and Pacific (ACP) states, which had initially been established in the very different setting of the mid-1970s. Integral to the Lome Conventions has been the principle of non-reciprocity, under which the EU offered preferential conditions for access to its markets by products originating in the ACP states, without any requirement for reciprocal concessions (other than most-favoured-nation status) by the ACP. These preferences are due to expire with the 4th Lome Convention in February 2000. Because they are non-reciprocal, these preferences cannot qualify under Article XXIV of the General Agreement on Tariffs and Trade (GATT) of 1947. Being available only to a particular group of developing countries, they are discriminatory and cannot be regarded as being covered by Part IV of the GATT, or the Enabling Clause of 1979, since these measures only sanction special, differential and preferential treatment for all developing countries. As a result of the changed climate of opinion in the World Trade Organisation (WTO), emphasising the obligation of members to bring their trade measures into conformity with WTO disciplines, the EU sought and obtained a waiver from Article I (principle of non-discrimination) for the remaining duration of the Convention, leaving open the arrangements to be put into effect after 2000.In the public discussions and consultations on a successor arrangement to Lome, the European Commission has emphasised the need for such an arrangement to be compatible with WTO requirements, so as to ensure the legal security of preferences. It is therefore envisaged that Lome preferences will be available only to the least developed countries (LLDCs), but will be generalised to all of the least developed countries, including for example Bangladesh, Bhutan, Cambodia, Lao D.R., Maldives, Nepal and Yemen, and not just to members of the ACP Group. The Commission has proposed that the non-LLDC ACP countries should be offered a series of regional and sub-regional free trade agreements. Not only would such arrangements seek to be WTO compatible, but the Commission also sees reciprocal regional agreements as stepping stones to fully liberalised trade and the integration of the developing countries into the world economy – an important development cooperation objective of the Maastricht Treaty.This article examines the Commission's proposals, and analyses the likely static and dynamic effects of a free trade agreement on the African ACP countries. It concludes by questioning whether the Commission's proposals would assist, rather than hinder, the regional integration and greater participation of these countries in the world economy.

One of the characteristic features of the constitutional regeneration of Spain in the late 1970s was the constitutional recognition of the country’s linguistic diversity. In strict compliance with the proclamation made in the preamble (“The Spanish Nation… proclaims its will to: […] Protect all Spaniards and peoples of Spain in the exercise of human rights, of their cultures and traditions, and of their languages and institutions”), Article 3 SC sets out the guidelines for a linguistic model that, combined with the clause governing the gradual exercise of the right to autonomy of the nationalities and regions that compose the common and indivisible country of all Spaniards (Article 2 SC) and in the light of the parallels with the gradual planning, by means of a statutory enabling clause, of the political symbols of that complex unitary community (Article 4 SC), may be considered an open model but by no means an imprecise or incongruous one. Notwithstanding, therefore, the details of other constitutional provisions governing linguistic matters, the cornerstone of possible constitutional order in this matter lies in the interpretation of the sense and scope of Article 3 SC.

Strongly influenced by the perception that restricted commerce and preferences in trade relations had contributed to the economic depression of the 1930s and the subsequent outbreak of war, the discussions leading to the General Agreement on Tariffs and Trade (GATT) in 1947 were driven by the desire to create an international economic order based on a liberal and non-discriminatory multilateral trade system. Enshrined in Article I of the GATT, the principle of non-discrimination (commonly referred to as the most-favored-nation or MFN clause) precludes member countries from discriminating against imports based upon the country of origin. However, in an important exception this central prescript, the GATT, through its Article XXIV, permits its members to enter into preferential trade agreements (PTAs), provided these preferences are complete. In so doing, it sanctions the formation of Free Trade Areas (FTAs), whose members are obligated to eliminate internal import barriers, and Customs Unions (CUs), whose members additionally agree on a common external tariff against imports from non-members. Additional derogations to the principle of non-discrimination now include the Enabling Clause, which allows tariff preferences to be granted to developing countries (in accordance with the Generalized System of Preferences) and permits preferential trade agreements among developing countries in goods trade.

In understanding the proliferation of free trade agreements (FTAs) in Asia since 2000, it is important to distinguish between two types of FTAs in terms of a legal basis on either General Agreement on Tariffs and Trade (GATT) Article XXIV or the Enabling Clause. The latter provision can be used when an FTA involves only developing countries. While there are a total of 34 Enabling Clause-based FTAs in effect around the globe, more than half of them are located in Asia. Moreover, the way the Enabling Clause is used by developing countries in Asia is very different from other regions. Outside of Asia, the Enabling Clause is usually used to form a plurilateral FTA that has an accession clause, which envisages gradual evolution into a subregion-wide cooperative agreement. In contrast, in Asia, developing counties started to use the Enabling Clause to sign bilateral FTAs in 2000. Such an innovative way of using the Enabling Clause is one of the main contributors to the recent proliferation of FTAs in Asia. This paper also considers the implications of this proliferation in Asia on the openness of Asian regionalism.

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.

Least developed countries (LDCs) are faced with a suite of challenges to their effective participation in global trade governance. Global trade governance includes bilateral, regional and multilateral trade agreements, and intergovernmental institutions like the World Trade Organization (WTO) and United Nations Conference on Trade and Development (UNCTAD). This chapter focuses on the multilateral trading system and specifically the WTO. It explores the emerging role of LDCs in WTO decision-making processes for negotiating the rules of the multilateral trading system and makes concrete proposals for advancing their priorities. After a brief background on LDCs in WTO decision-making processes, this chapter reviews the historical role of developing countries in decision-making related to the General Agreement on Tariffs and Trade (GATT), the emergence of developing country coalitions in multilateral trade negotiations and the development of the LDC coalition in the WTO. It then sets out LDC priorities for improved global trade governance, emphasizing the role of Special and Differential Treatment (SDT) and the need for LDCs to take greater ownership of efforts to integrate them into the trading system. It continues by making the case for the creation of an institution for LDC-specific needs in Geneva. The chapter concludes with a summary of recommendations.

60 years ago, when the rules of the GATT were negotiated, world energy demand was a fraction of what it is today and so were energy prices. While energy has always been a crucial factor in geopolitics, at that time liberalising trade in energy was not a political priority. The industry was largely dominated by state run monopolies and thus governed by strict territorial allocation. International trade in energy resources and products was heavily concentrated, cartelised and controlled by a few multinational companies. This explains why the rules of the General Agreement on Tariffs and Trade (GATT), and now the World Trade Organization (WTO), do not deal with energy as a distinct sector. It was felt that general rules, including the disciplines on state trading, could adequately address trade in energy. Also, no special agreement on trade in energy has emerged in any of the sectorial agreements that have been drawn up since the Kennedy Round. Yet since basic WTO rules are applicable to all forms of trade, they also apply to trade in energy goods and services. Today, these rules

Introduction There is growing concern about preferential trade agreements (PTAs) and the role they should play within the multilateral trading system. This concern stems from both their increasing number and their ever-broader scope. During the period 1948–94, the General Agreement on Tariffs and Trade (GATT) received 124 notifications of PTAs, of which about 50 were active at the creation of the World Trade Organization (WTO) in 1995. Since then, more than 250 new arrangements have been notified to the WTO, and the number of arrangements active in 2008 was about 200. A large part of this expansion involves agreements where the European Community (EC) or the United States is a partner. As a result, the EC and the United States have become the two main “hubs” in the pattern of PTAs, with the “spokes” represented by agreements with the various partner countries. Modern PTAs exhibit features that earlier PTAs did not possess. In particular, PTAs formed before 1995 concerned only trade in goods and took the form of (mostly) free trade areas (FTAs) or (more rarely) customs unions (CUs), involving mainly tariff liberalization. Since the creation of the WTO and the extension of multilateral trade agreements to trade in services and trade-related aspects of intellectual property rights, new PTAs also tend to cover these two subjects, which revolve chiefly around regulatory issues.