Is the WTO Appellate Body in Limbo? The Roots of the Crisis in the WTO Dispute Settlement Body and the Available Routes Navigating the Quagmire

In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.

Business, Human Rights and the Environment—Using Macro Legal Analysis to Develop a Legal Framework That Coherently Addresses the Root Causes of Corporate Human Rights Violations and Environmental Degradation

This article applies ‘macro’ legal analysis to the challenge of legal reform related to corporate responsibility for human rights violations and degradation of the environment. It recognises that the approaches from different communities of lawyers to the negative impacts on human rights and the environment caused by companies, sometimes operate in isolation from each other, are not always mutually supportive, can lead to a fragmentation of effort, and may not address the root causes of the problem. In particular, this article analyses the extent to which existing approaches tend to address symptoms of the issues, rather than the root causes themselves. It makes the case that in this regard specific root causes exist within the frameworks of corporate law in all jurisdictions and various aspects of international economic law too. To carry out the study, it employs macro legal analysis, a methodology not previously applied in this field, as a means of developing an understanding of the legal frameworks that, it argues, influence corporate decision making that can affect human rights and the environment. It undertakes an analysis that incorporates relevant corporate law, World Trade Organisation (WTO) law, international investment law, the law relating to multilateral development banks (MDBs), and international insurance law. By using this form of anlaysis it is possible to show how legal frameworks can operate in unison, reinforcing each other providing a cumulative effect that can influence corporate decision makers. Finally, based on the results of the analysis, it suggests a possible strategy of macro-level reforms that could be applied to the re-design of relevant legal frameworks to better facilitate the full protection of human rights and to achieve net zero degradation of the environment. As a result it seeks to demonstrate how this approach can be strategically applied by both human rights and environmental lawyers as a common pathway towards effective legal reform.

Content and Functional Purpose of the Duty in Modern Conditions

The duty as a source of budget formation and a regulator of foreign trade activity contributes to improving the macroeconomic situation and the state's entry into the international trade community. Therefore, the study of the essence and functional purpose of the duty becomes particularly relevant since it makes it possible to increase the efficiency of its functioning in modern conditions. The purpose of the study is to consider the tax and foreign trade nature of the duty, establish its essence and specific characteristics, identify the main functions and substantiate changes in the roles of duty functions in modern conditions. The specifics of the scientific tasks that make up the subject of research required the use of a set of special methods (general scientific and private scientific, theoretical and empirical), the use of which helped identifying the content of the duty, consider its functional purpose and establish the reasons for the weakening of the role of duty functions in different countries of the world. In the course of the study, two approaches to the interpretation of the essence of duty were established: as a tax and as a specific foreign trade payment. The author's definition of the duty was proposed and its main essential characteristics were clarified. It has been established that there are no unified approaches to the definition of duty functions in the scientific literature, and only two main ones (fiscal and regulatory) are substantiated. It was also covered that due to the entry of most countries into the World Trade Organisation and the establishment of restrictions on the growth of customs rates, the regulatory function of the duty is weakening. It was established that in developed countries, due to international restrictions on the application of custom rates, the role of the fiscal function of duty has decreased. It was determined that in less developed countries, in conditions of limited budget revenue sources, the fiscal function of duty continues to be the main one. The practical value of the study lies in the fact that clarifying the content and functions of duty in modern conditions makes it possible to increase the effectiveness of customs tariff regulation to protect national interests during the intensification of international integration processes

Intellectual Property Rights Issues in Indian Pharmaceutical Industry

Historically, India has neglected, and even made a farce of, pharmaceutical patents. In fact, it was not until 2005 that India offered patent protections for pharmaceutical companies at all. This has led to abuses of the compulsory licensing agreement with the World Trade Organisation, and has led to major criticisms of other global pharmaceutical companies like Pfizer, Roche, and Bayer. According to these companies, India’s generic drug manufacturing industry is destroying R&D funding and future innovation. This is because the companies which invented the brand name drugs are not receiving royalties; and therefore, losing out on profit, a lot of which would have been put back into R&D. While the World Trade Organisation under the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement (Doha Declaration) has provided for the use of compulsory licenses (temporary patent rights for life-saving pharmaceuticals), recently India has been more lenient in its use of this stipulation. In fact, the first use was in 2012 for Nexavar. Since then India has used the compulsory licensing provision at least five times. The total numbers of Indian Pharmaceutical Companies those who are having Research and Development facilities and also having Intellectual Property Rights for the past five years consecutively are take for this study.

Crafting Trade and Investment Accords for Sustainable Development

International law guides globalization and the future of the world economy, affecting all people and our planet. Rules governing trade and investment could continue to be represented only by Hermes, the Greek god of thieves and commerce, or also draw inspiration from Athena, representing justice, wisdom and craftsmanship. This volume explores how economic treaties could be better crafted to foster—rather than frustrate—sustainable development. It explains how leading actors identify potential social and environmental impacts of shifting capital, goods and services, and pilot new economic instruments to enhance sustainability. Based on a review of World Trade Organisation (WTO) debates and over 110 other economic accords, the volume highlights innovative measures adopted by States from a selection of regional and bilateral trade and investment accords, exploring their implications for a new generation of economic agreements, including the United Kingdom’s next steps and the proposed Agreement on Climate Change, Trade and Sustainability (ACCTS). The author, an award-winning expert jurist and renowned professor of international law, examines how sustainability and justice commitments can be operationalized in treaty texts themselves, steering vital trade, investment and finance towards the world’s Sustainable Development Goals (SDGs). Adopting a ground-breaking, inter-actional and systematic approach, with examples spanning several decades of experimentation and experience, she proposes carefully crafting of legal principles and rules to contribute to sustainability. By integrating social, environmental and economic priorities, she argues, States and stakeholders can weave new rules for our common future, towards a more inclusive, greener global economy.

Arbitration, the World Trade Organization, and the Creation of a Multilateral Investment Court

The proliferation of international tribunals has reached the investment sphere. The European Union and its treaty partners have included an investment court system in the four individual investment agreements they have negotiated since the European Union took competence over foreign direct investment with the passage of the Lisbon Treaty. The United Nations Commission on International Trade Law (UNCITRAL), with the European Commission’s encouragement, is considering reform of investor-state arbitration with the front runner for reform the establishment of a multilateral investment court. Yet trade and investment law seem to be an oddly inverse relationship when it comes to preferred modes of dispute settlement. In the trade law realm, the survival of the ‘crown jewel’ of the World Trade Organisation (WTO)—its Dispute Settlement Body is uncertain. The appellate body has recently come in for special opprobrium. Arbitration is one of the suggested alternatives should existing dispute settlement procedures cease to function. Thus, in the investment law sphere, arbitration is apparently more and more disfavoured, and the preferred alternative is some kind of standing body with the pièce de résistance—an appellate body—at its apex. Why are these two regimes asynchronous? I hypothesize that states favour judicialization of disputes in the abstract but have reservations once judicialization becomes more concrete. Judicial or quasi-judicial decisions are hard for individual states to ignore or discredit, yet states have difficulty organizing multilateral responses to decisions they dislike.

Special and differential treatment in the WTO: framing differential treatment to achieve (real) development

Purpose Special and differential treatment (SDT) in the World Trade Organisation (WTO) has failed to integrate developing countries into the international trading system, as contemplated by the WTO Agreement, itself. This paper aims to interrogate the current application of SDT by WTO members as the possible undermining factor for SDT not delivering on its objective. Design/methodology/approach The research uses a qualitative legal methodology. This study conducts desk analysis of primary legal materials and existing literature to assess current reflections of SDT and draw lessons for reforms in the WTO. Findings From interrogating current SDT practice in the WTO and a comparative analysis with a similar differential treatment under the Montreal Protocol, this paper finds that indeed, the problem lies in the current approach to SDT application in the WTO. This study finds that the existing absence of eligibility criteria for determining access to SDT by countries is the core reason for the abuse and sub-optimal outcome from its application. Originality/value While making a case for a rules-based approach to differentiation in the WTO, this paper proposes a unique methodology for differentiating between developing countries for SDT, including the use of a composite indicator to ensure that indicators that are used sufficiently reflect their heterogeneous needs. Drawing inspiration from Gonzalez et al. (2011a), this study introduces an adaptation for selecting a threshold for graduation. Specifically, the proposal on the value of the standard deviation of countries from the weighted mean of the composite indicator as the threshold for graduating countries from SDT is novel.

Evaluation of Outsourcing Development in the Service Sector

The global pandemic has affected all sectors and disrupted not only supply chains but also had a particular impact on the range of services provided and the whole service sector. Outsourcing is used to adapt to business environment changes. However, in the scholarly literature, outsourcing of services is analysed as a complementary part of the manufacturing process—there is a lack of research on outsourcing in service companies. This article analyses the enablers of outsourcing in all service groups. The aim of the semi-structured interview was to determine not only the enablers, their significance in each WTO (World Trade Organisation) group of services but also the use of outsourcing in the provision of core and non-core services. The results of the empirical study revealed that outsourcing is increasingly used in the service sector; however, enablers vary depending on the provision of services, the nature of the service company’s activities, and the needs they meet, public or for-profit.

Consensus decision-making and democratic discourse in the General Agreement on Tariffs and Trade 1947 and World Trade Organisation

This paper provides a genealogy of consensus decision-making and democratic discourse in the multilateral trade regime. It argues that the contemporary link between the World Trade Organisation’s consensus procedure and ideas of ‘international democracy’ has its roots in a struggle that took place over the international economic order in the 1960s and 1970s.