General Issue
Vol. XV, No. 2
(Winter '24)

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The World Trade Organization’s (WTO) covered agreements strike a delicate balance between prioritising free trade and allowing Members to pursue legitimate policy goals in areas like public health and environmental policy. While WTO rules are permissive of Member’s policies, they require that Members justify the consistency of their policies, either as a justification under Article XX ofthe General Agreement on Tariffs and Trade (GATT) or as a positive obligation under the Agreements on the Application of Sanitary and Phyto-Sanitary Measures (SPS Agreement) or Technical Barriers to Trade (TBT Agreement). When a Member’s measure is challenged before a WTO Panel or the Appellate Body, it must provide scientific evidence to support its measure. In this context, the SPS Agreement establishes detailed provisions regarding the standard of review for such scientific evidence. However, these provisions do not fully address the standard of review and have, in some cases, been applied inconsistently. By delving into the practices of WTO Panels and the Appellate Body as distinguished from other international courts or tribunals, this paper aims to address two pertinent concerns with the WTO’s application of the standard of review of scientific evidence: the level of deference granted to a Member’s scientific determinations and the relationship between the scientific evidence and the Member’s measure. Subsequently, it proposes modifications on both fronts that would help WTO dispute settlement address contemporary disputes and meet its goals as the guardian of international trade law.

Growing demand for ‘critical minerals’ – such as lithium, cobalt, and nickel – and strategic rivalries between large economies have prompted a scramble to secure control of such minerals and the supply chains that organise their processing and distribution. Public policies have sustained these processes, producing new types of international instruments – from standalone agreements, such as the Japan-US Critical Minerals Agreement; to tailored provisions in trade treaties, such as the ‘energy and raw materials’ chapter of the Chile–EU trade agreement; all the way to soft instruments that provide a shared framework and roadmap for cooperation, such as the strategic partnerships the EU has negotiated with several mineral-rich states. Through the prism of critical minerals supply chains, these instruments cut across different areas of law and policy: trade, investment, aid, labour rights, the environment and collaboration in research and innovation. Critical minerals have also featured in international dispute settlement processes, including a dispute at the World Trade Organization over Indonesia's restrictions on unprocessed nickel ore exports. An initial appraisal of these developments highlights the role of law in sustaining and regulating commodity production and trading, while the widespread use of soft instruments points to the limits of legal processes in the context of rapidly evolving economic and geopolitical realities. The developments reflect both continuities and ruptures in international economic law, particularly in relation to the roles of states and markets. They also illustrate the interrelatedness of climate imperatives, territorial governance, international investment and trade, and the need to more effectively integrate ecological sustainability and just transition' principles into the fabric of the global economic order.

In 2018, the Trump Administration imposed tariffs on solar panels, washing machines, steel, aluminium, and goods from China. Affected states responded with retaliatory tariffs outside the World Trade Organization’s (WTO) dispute settlement. Superficially, trade retaliation appears to be a breakdown in reciprocity. However, it is not indicative of the failure of the reciprocity principle. This paper explains how the negative reciprocity norm functions in the multilateral trading order. Drawing from a dataset of 26 disputes, it shows how Members fight battles over compliance using countermeasures designed to exert political pressure. Three historical examples show that members levy targeted retaliatory sanctions for two reasons: to increase the friction that keeps the issue in front of national decision-makers (negative reciprocity) and to create a bargaining position from which to negotiate a path back to cooperation. Lessons learnt at the WTO informed the retaliatory response to the Trump tariffs.

The past decade has witnessed the emergence of ‘new-generation’ investment treaties that are intended, inter alia, to impose meaningful substantive obligations on foreign investors, to allow the host states more latitude in their policy decision-making and, arguably, to ensure that the scope of rights that may be examined in adjudicating investor-state cases is not confined to those of investors. Nevertheless, it has been observed that the shift in treaty drafting has not generated a parallel shift in the outcomes of cases that should reflect the textual formulations of the ‘new’ treaties. To investigate this misalignment, this article dissects the decision rendered in Eco Oro v. Colombia litigated under the ‘new-generation’ Canada – Colombia Free Trade Agreement. It examines the underlying motivation for state actions, whose interests were pursued, and the behaviour of Eco Oro on the ground. The article places emphasis on the powerful citizen-empowering system model that Colombia has presented in its battle to protect the ecologically sensitive páramos. The overriding need to protect the páramos can be extrapolated from Colombia’s conclusion of a new-generation treaty and its constitutional acquis and yet it felt the pinch of a finding of liability by an Investor-State Dispute Settlement (ISDS) tribunal even with an investor who had no environmental license for exploitation. The article warns against the reduction of the reasons behind such misalignment to the oft-cited problems inherent in the ISDS system. It concludes that, besides the ISDS failure to detect the disparities between good states like Colombia and states that cynically use environmental protection and indigenous rights as a tool to pursue their political goals, two issues afflicted Colombia’s behaviour: misalignment between its original intent and the language used in the treaty, and the surrounding body of clauses; and the narrow, localised conceptualisation of participatory mechanisms at the national level. For these reasons, Colombia failed to reap the benefits of its people centred reforms and to bring the company’s misconduct within the radar of illegality at least at the domestic level.

This article traces the legal transplantation of rules on the protection of Geographical Indications (GIs) from the European Union (EU) into China via the text of the World Trade Organization’s (WTO) Agreement on Trade Related Aspects on Intellectual Property Rights (TRIPS). Recognised as Intellectual Property (IP), GIs represent an increasingly central element of trade negotiations between the EU and partner countries. In 2021, the EU-China GI Agreement entered into force and is now located at the centre of a growing trade in agricultural products between the EU and China, which in turn necessitates the effective protection of GI products. Very few scholarly works have explored how GIs arrived in China, and the two predominant narratives are the pressure from the US or French influence over China’s GI rules. The article argues the EU has diffused its rules on GI protection to China, levelling up the latter’s domestic standard of GI protection while maintaining its commercial interest at play. Finally, the article assesses the reception of EU norms by China and explores a range of responses, stretching from outright adoption to moderate adaptation.