AfCFTA’s Notification Options to WTO: Enabling Clause or Article XXIV Exception

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.

Prudential supervisory tasks (Article 127(6) TFEU, monetary policy vs prudential supervision): ‘Kissing awake the Sleeping Beauty provision’

This chapter attempts to describe the interplay between Economic Monetary Union (EMU) and Banking Union and the central function of the European Central Bank (ECB) in both areas. It offers a historical background to the development of European Union (EU) level prudential supervision on the basis of the Treaty on the Functioning of the European Union (TFEU) and examines issues at the intersection between monetary policy and banking supervision. Relatedly, financial stability is discussed as a public good that informs both areas of ECB activity. The chapter further examines difficult organizational choices, arising from the development of a Banking Union not foreseen in the Maastricht Treaty (which only included an ‘enabling clause’): Should the same institution (ie, the ECB) have both monetary and prudential competence? If so, what governance arrangements are necessary for this institution, also given that final authority over all matters rests with the Governing Council according to the Treaty itself?

On the Legality of the United States Action of Terminating India’s GSP Status

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

International economic law and the quest for universality

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 WTO and Regional Trade: a family business? The WTO compatibility of regional trade agreements with non-WTO-members

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.

Integrating African Markets into the Global Exchange of Services: A Central African Perspective

Services liberalisation has gradually become very important for growth in developed and less-developed countries alike and can, as such, be seen as development prospects for sub-Saharan Africa where numerous economic integration attempts are stories of repeated failures. Despite the abundant literature on PTAs, however, little attention has been given to Central Africa Economic and Monetary Community (CEMAC) as a trade bloc. This is an attempt to address that dearth.At a time when “boosting intra-African trade” is gaining currency on the continent, this article tests the compatibility of the potential CEMAC economic integration agreement (EIA) against the background of the existing framework and argues that Central Africa countries would be in a better position to integrate their economies after widening the borders of their individually tiny markets. Analysing the legal discipline behind services Preferential Trade Agreements (PTAs) under the General Agreement on Trade in Services (GATS) and how CEMAC’s agreement fits into this legal landscape, this article further advocates that this sub-group of countries should go beyond the Enabling Clause self-contentment and embark on a deeper (and comprehensive) integration.