Vol. XVII, No. 2
(Summer '26)
3
No Small Fry? The Colombia — Frozen Fries Proceedings and the Long Road to WTO Dispute Settlement Reform
Christian Delev
As the first World Trade Organization (WTO) dispute involving Multi-Party
Interim Appeal (MPIA) arbitration, the Colombia — Frozen Fries proceedings have been seen by many members and commentators alike, as paving the way towards WTO dispute settlement reform. This article takes a different stance on the significance of the proceedings, that is, they reveal the limits of purely judicial approaches to resolving the ongoing Appellate Body crisis in two regards. First, the interpretation of Article 17.6(ii) of the Anti-Dumping Agreement advanced by the Colombia — Frozen Fries arbitrators is based on mutually incompatible claims and does not offer a workable solution to the concerns of the United States (U.S.) originating in the zeroing saga. Second, there is insufficient evidence to suggest whether MPIA arbitration will preserve the members’ right to appeal panel reports in the interim period. Instead, the Colombia — Frozen Fries proceedings signal the effective need for the members to consider interpreting, or even reopening negotiations over the covered agreements and that the authority of WTO dispute settlement will likely rest on sustaining consensual economic diplomacy in the interim.
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Fishery Sustainability and the WTO Fisheries Subsidies Agreement: Its Causes, Consequences, and Prospects
I-Ju Chen
The World Trade Organization Agreement on Fisheries Subsidies (FSA), adopted by the World Trade Organization (WTO) in 2022, was henceforth subject to considerable negotiations and revisions. As a consequence of these efforts, the FSA went into effect on September 15, 2025. The agreement recognises the importance of environmental sustainability for economic stability, food security, and ocean health and is thus the first WTO treaty to have, at its core, the goal of environmental sustainability. Among the FSA’s key fishery provisions are those targeting the subsidisation of Illegal, Unregulated, and Unreported (IUU) fishing; the overexploitation of fishery stocks; and the important regulatory roles of Regional Fishery Management Organisations (RFMOs). In this paper, the author argues how the FSA reflects an effort to integrate fishery regulations
into existing international regimes despite the challenges arising from the
traditional territorial structures of international law. Further, the author explores the causes and justifications behind this sustainability-focused trade agreement and then assesses the efficacy of the FSA in sustaining fisheries. Finally, the author concludes with the argument that the FSA, as a heavily negotiated multilateral trade agreement, offers a great deal of hope for the much-needed regulation of fishery subsidies but must overcome several outstanding problems, including an incomplete formulation of fishery subsidies (e.g., those destined for fuel) and an unwieldly dispute settlement mechanism.
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Ideology Critique of Trade Liberalisation in the Digital Trade Era: The Economics-Law-Technology Ideology Nexus
Jeremmy Okonjo
This article revisits the historical ideology critiques of free trade theory and
the World Trade Organization’s (WTO) trade liberalisation regime, and explores the extent to which these critiques and policy concerns, including
increasing inequitable development, widening digital divides, and market concentration, are amplified in the digital trade era. The article also explores why, despite the amplification of these concerns, the trade liberalisation paradigm remains the rational trade policy framework for governing the global digital economy. This paper argues that the resilience and reproduction of trade liberalisation as a trade policy paradigm in the digital era cannot be understood or explained purely on economic terms. It should be analysed through the framework of ideology critique that articulates the co-constitutive, mutually-reinforcing ideological roles of free trade theory, international trade law, and digital technologies in reproducing trade liberalisation as the only rational trade policy paradigm. The article develops this argument by adopting the concepts and methodologies of ‘ideology’ and ‘ideology critique’ of free trade theory, WTO law and digital technologies, as developed by Critical Legal Studies, Third World Approaches to International Law scholarship, and science and technology studies (STS).It explores how the ideologies of free trade, trade liberalisation law, and technological rationality and determinism are co-constitutive and mutually- reinforcing, and are used to maintain domination in the international trade regime, through the ideological strategies of universalisation, reification, naturalisation, rationalisation, and narrativisation. The consequence of this ideological assemblage is the resilience of the WTO’s trade liberalisation regime against the historical ideology critiques of free trade.
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Security Exceptionalism and Developmental Asymmetry: National Security at the Trade-Technology Nexus
Jyotsna Manohar
Traditional conceptions of national security have undergone various evolutions in recent decades, moving away from pure military aggression by a State to a new range of threats, which include cyber threats, climate change, and pandemics. In recent years, World Trade Organization (WTO) members have increasingly invoked national security justifications to defend national policies designed to address these threats, such as export controls, digital trade restrictions, sanctions regimes, and strategic industrial subsidies. Consequently, such measures increasingly clash with trade rules that remain firmly rooted in the post-war context of their drafting, and have not evolved at the same pace as the security threats themselves. Tracing the evolution of the national security exception since its inception to the most recent WTO panel rulings on its interpretation, this paper seeks to explore the relationship between national security, international trade, technology, and its impact on development. Given the sensitive nature of national security and the immense scope for misuse of national security carve-outs, it is vital to ensure a balance between trade, evolving national security considerations, and development. The second half of the paper seeks to explore this relationship and contend with how these different interests can be reconciled within the global trading system.
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Commodities and Sustainability in International Trade Treaties: Insights from the EU-Indonesia Comprehensive Economic Partnership Agreement
Lorenzo Cotula
Due to the nature of trade relations between Indonesia and the European
Union (EU), the EU-Indonesia Comprehensive Economic Partnership Agreement (CEPA) provides an opportunity to assess how “state-of-the- art” trade treaty provisions address sustainability issues related to trade in
commodities such as palm oil and nickel. In conducting such an assessment, this Article first explores the complex nexus that exists between commodities, trade, and sustainability, by discussing sustainability issues that affect the palm oil and nickel sectors in trade relations between
Indonesia and the EU. The Article then critically reviews the main provisions of the CEPA related to sustainability in commodity trade. This review primarily covers the chapters on Trade and Sustainable Growth and Development, Energy and Raw Materials, and on Sustainable Food Systems as well as the Protocol on Sustainable Palm Oil. Finally, the Article outlines a preliminary appraisal of how these provisions respond to real-life sustainability challenges. The findings point to innovations in legal technologies for integrating sustainability considerations into international
economic agreements, including arrangements centred on certain commodity sectors. However, the findings also highlight the need for new approaches that can be more responsive to “bottom-up” visions of sustainability, particularly those advanced by the people most impacted by the expanding commodity frontier.
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Memoranda of Understanding and Crtical Minerals: Evolution of International Economic Law?
Lukasz Gruszczyński & Marcin J. Menkes
The global transition toward green energy and Artificial Intelligence has repositioned critical minerals (CMs) as strategic levers of geopolitical confrontation. As the neoliberal paradigm shifts toward strategic autonomy,
states increasingly utilise Memoranda of Understanding and hybrid instruments to secure supply chains. This article contends that these frameworks signal a structural transformation in international economic law, moving from universal multilateralism toward “bounded orders” defined by security imperatives. It identifies a dual-track evolution: a horizontal dimension of “asymmetric mutualism”, linking mineral access to essential aid, and a vertical dimension involving the “de internationalization” of governance via foreign private law. Ultimately, the study demonstrates how geopolitical duress is leveraged to replace permanent sovereignty over natural resources with structural dependence on global value chains.
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The European Union Carbon Border Adjustment Mechanism: Compatibility with WTO Laws and Implications for FTAs
Dr. Pralok Gupta & Dr. Shagufta Naaz
The European Union’s (EU) Carbon Border Adjustment Mechanism (CBAM) entered its definitive phase on January 01, 2026, becoming the first operational border carbon adjustment instrument adopted by a major economy. The Regulation extends the carbon price signal of the EU Emissions Trading System (EU ETS) to imports of cement, electricity, fertilisers, iron and steel, aluminium and hydrogen, with a planned downstream extension from January 2028. This paper analyses the existing literature that examines whether CBAM is compatible with the multilateral disciplines of the World Trade Organization (WTO) and how the EU’s network of Free Trade Agreements (FTAs) interacts with this measure. The paper finds that several design features of CBAM are likely to violate the national treatment obligation under Article III:4 and the Most Favoured Nation (MFN) obligation under Article I:1 of the General Agreement on Tariffs and Trade (GATT). The General Exceptions in Article XX may be available to the EU but the chapeau is a demanding test, and that the enabling clause provides a doctrinal basis for differentiated treatment that the EU has chosen not to use. The paper further finds that the EU’s FTAs may not legally exempt partners from CBAM without violating the MFN obligation, and that the most of these FTAs can offer is procedural cooperation.
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Reconciling Trade and Environmental Protection in WTO Law: Adjudication, Fragmentation and Regulatory Space
Rafael Leal-Arcas, Amani Albaqshi & Haifa Albelaihid
This article examines how World Trade Organization (WTO) adjudication shapes the balance between trade liberalisation and environmental protection by reconceptualising the notion of regulatory space in conditions of legal fragmentation. While existing scholarship treats fragmentation as an external constraint on the WTO, this article argues that fragmentation is actively mediated through adjudicative reasoning, particularly in the interpretation of Article XX of the General Agreement on Tariffs and Trade (GATT). Drawing on a systematic analysis of WTO jurisprudence, it demonstrates that panels and the Appellate Body (AB) do not merely apply fixed legal standards but recalibrate regulatory space through doctrines such as necessity, even-handedness, and proportionality. This produces a patterned but under-theorised outcome: environmental measures are more likely to be constrained where they impose asymmetric externalities on trading partners, revealing an implicit hierarchy between trade and environmental objectives. By advancing a structured analytical framework linking adjudication, fragmentation, and regulatory space, the article offers a more precise account of how legal reasoning translates into distributive consequences. It concludes by outlining doctrinal and institutional reforms, including a more deferential approach to environmental measures and a recalibration of the necessity test, to better
accommodate environmental protection within the WTO legal order.
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"Ex Officio" Trade Remedy Investigations: Jurisprudence and Practice
Triplicane Damodaran Satish
The starting point of any trade remedy investigation is the formal initiation
of the investigation by the investigating authorities. Predominantly, investigations have been initiated based on a complaint filed by the aggrieved domestic industry of the importing country. However, an exception exists to this general rule, allowing an Investigating Authority (IA) to ex-officio initiate an investigation without receiving a formal application from the domestic industry. Ex-officio initiation is an attractive alternative for domestic industries seeking protection, as it avoids the usual, time and resource-consuming application process. Yet, historically, the self-initiation process has been used infrequently by IAs and has seldom been supported by domestic industries. There is limited interpretation on the issue of ex-officio initiations by the General Agreement on Tariffs and Trade (GATT) Panels and the World Trade Organization (WTO) Dispute Settlement Body (DSB). However, with ex-officio initiations becoming more pronounced recently, and one ex- officio initiation pending adjudication before the DSB,1 this rarely used provision is becoming prominent. The current paper carefully traces early legislation on trade remedies, especially initiation procedures, in GATT and Uruguay Round negotiation documents and available literature and attempts to identify the object and purpose behind enacting such a rarely used ex-officio initiation provision. The paper observes the shift of trade remedy investigations from a legal to an administrative nature and its impact on the subsequent development of evidentiary requirements and looks at the views of the Contracting Parties
to the GATT on the issue of self-initiation and how the discussions influenced the drafting of the provision. The paper then looks at the jurisprudence developed on the key components of the provision, namely, the existence of ‘special circumstances’, and second, sufficient evidence of
dumping/subsidisation, injury, and causal link. The paper finally turns to the practices of key users of trade remedy investigations and to how Members have enacted the provision and used the ex-officio procedures.
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Navigating Turbulent Waters: Africa's Key Dilemas and Challenges
Carlos Lopes
This article situates Africa within the intersecting humanitarian, geopolitical, and economic disruptions of the present moment, contrasting the hyper visible but inadequately addressed crisis in Gaza with the comparative neglect of Sudan. He argues that Africa’s growing demographic, mineral, and ecological importance has not yet translated into meaningful influence over the rules that govern the international order. Its central proposition is that, because disruption is no longer episodic but structural, Africa must build institutions capable not merely of surviving turbulence but of turning it into a source of renewal.