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Mark Wu, The 'China, Inc.' Challenge to Global Trade Governance, 57 Harv. Int'l L.J. 261 (2016).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Trade Regulation
,
International Trade
,
International Law
Type: Article
Abstract
In the past decade, the World Trade Organization (WTO) has adjudicated over forty disputes involving China and other powerful economies. These cases are often trumpeted as a sign of the enduring strength of the trade regime and the efficacy of international law in managing geopolitical tensions associated with China’s rise. This Article suggests that this positive assessment obfuscates dangers lurking on the horizon. It explains why the rise of China presents a major challenge to the multilateral trade regime. At the heart of this challenge is the fact that China’s economic structure is sui generis — having evolved in a manner largely unforeseen by those negotiating WTO treaty law. As a result, the WTO is equipped to deal effectively with only a limited range of disputes — those in which Chinese policies largely resemble elements of other alternative economic structures. Outside of this set of issues, the WTO faces two very different but equally serious challenges. The first is reinterpreting certain legal concepts to adapt and fit an unforeseen Chinese context. The second is deciding whether to expand the scope of its legal rules to accommodate issues that currently fall outside its jurisdiction. This Article explores options for meeting these challenges. It suggests that the most likely outcome is one in which China’s rise will exacerbate the diminishing centrality of WTO law for global trade governance.
Mark Wu, Rethinking the Temporary Breach Puzzle in International Trade Law: A Window on the Future of Trade Conflicts, 40 Yale J. Int’l L. 95 (2015).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Trade
,
Nonprofit & Nongovernmental Organizations
Type: Article
Abstract
The World Trade Organization (WTO) is held out as an exemplar of an effectively functioning international “court.” Yet, a puzzle remains unexplained: in WTO litigation, a respondent found to have enacted an illegal trade policy measure needs only to remedy the illegality. So long as it does, the WTO lacks the authority to order retrospective remedies to be paid to the complainant for past harm. The remedies loophole provides countries with a “free pass” for temporary breach. Why do more countries not take advantage of this pass more frequently? How is it that the WTO manages to function effectively in spite of its imperfect remedies? This Article suggests that the key to understanding the answer to this puzzle lies in the importance of power asymmetries in a WTO system that is dynamic and evolving. It identifies a series of policy instruments available to a powerful country whenever its trading partner is tempted to undertake a temporary breach that harms the powerful state’s interests. These instruments create additional costs that offset the benefit of any temporary breach, thereby effectively deterring most, albeit not all, temporary breaches. In addition, the established powers share a collective interest in maintaining the WTO system’s stability. This also causes them to exercise collective self-restraint in their own exercise of temporary breaches. The answer to this puzzle is of more than just academic importance. It also sheds important light on the future of the international trade regime. As geopolitical power shifts and trade among developing countries increases, particular countries may find it more tempting to engage in temporary breaches under certain circumstances. This Article examines the nature of these emergent conflicts and discusses its implications for the future of the global trading regime.
Mark Wu & James Salzman, The Next Generation of Trade and Environment Disputes: The Rise of Green Industrial Policy, 108 Nw. U. L. Rev. 401 (2014).
Categories:
International, Foreign & Comparative Law
,
Environmental Law
Sub-Categories:
Climate Change
,
International Law
,
International Trade
,
Trade Regulation
Type: Article
Abstract
This paper examines the extent to which the international trade regime impacts the international investment regime. While commentators have identified rich areas of cross-fertilization and suggested increasing convergence between the two regimes, the evidence reveals only a limited and selected degree of influence. Specific attention is paid to four areas: the design and architecture of the investment regime; the patterns of investment treaty formation; the substance of investment treaty provisions; and treaty interpretation. Across these four areas, interactions between the two regimes remain sporadic and decentralized. Given the different normative orientations of the two regimes, one should not expect growing rapprochement in the foreseeable future between the two regimes.
Petros C. Mavroidis & Mark Wu, The Law of the World Trade Organization (WTO): Documents, Cases & Analysis (West Acad. Publ'g 2d ed. 2013).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Trade
,
Trade Regulation
,
International Law
Type: Book
Abstract
This volume discusses the law of the World Trade Organization (WTO), the global forum for trade liberalization. It discusses in exhaustive manner the legal framework governing international trade that evolves out of the treaty regime and elaborates upon the major case law issued by the WTO. It further includes references to academic scholarship critiquing the caselaw, as well as discussions of the economic and political science theories of how WTO law is shaped.
Mark Wu, Indian Corporations, the Administrative State, and the Rise of Indian Trade Remedies, in The Indian Legal Profession in the Age of Globalization (David Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., forthcoming 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
,
Trade Regulation
Type: Book
Kamal Saggi & Mark Wu, Trade and Agricultural Disease: Import Restrictions in the Wake of the India – Agricultural Products Dispute, 16 World Trade Rev. 279 (2017).
Categories:
International, Foreign & Comparative Law
,
Environmental Law
Sub-Categories:
Agriculture Law
,
Trade Regulation
,
International Trade
Type: Article
Abstract
Trade in agricultural products raises sensitivities, particularly when imports originate from a trading partner experiencing an outbreak of some type of agricultural disease. In this Article, we explain why despite the negative externalities associated with diseased imports, an importing country is generally not permitted to ban such imports outright under WTO law. Rather, it is allowed to do so only under fairly specific circumstances. We also highlight how the recent India – Agricultural Products ruling contributes to the jurisprudence of two issues concerning the SPS Agreement: the interpretation of international standards, and the relationship between the risk assessment and scientific evidence requirements.
Kamal Saggi & Mark Wu, Understanding Agricultural Price Range Systems as Trade Restraints: Peru–Agricultural Products, 15 World Trade Rev. 259 (2016).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Trade
,
Trade Regulation
,
International Law
Type: Article
Abstract
An agricultural price range system (PRS) aims to stabilize local prices in an open economy via the use of import duties that vary with international prices. The policy is inherently distortionary and welfare-reducing for a small open economy, at least according to the canonical economic model. We offer an explanation for why a government concerned with national welfare may nevertheless implement such a policy when faced with risk aversion and imperfect insurance markets. We also highlight open questions arising out of the Peru–Agricultural Products dispute for the WTO's Appellate Body to address in order to clarify how a PRS consistent with WTO rules could be designed. Finally, we discuss the possibility that a WTO member might resort to a free trade agreement (FTA) to preserve its flexibility to implement a PRS and how an FTA provision of this sort ought to be treated in WTO litigation.
Mark Wu, The WTO and China’s Unique Economic Structure, in Regulating the Visible Hand? The Institutional Implications of Chinese State Capitalism (Benjamin L. Liebman & Curtis J. Milhaupt eds., 2016).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
,
East Asian Legal Studies
Type: Book
Abstract
"This chapter examines the challenges posed by the rise of China’s state capitalism to the multilateral trade regime. At the heart of the challenge is the fact that China’s economic structure is unique and has evolved in a manner largely unforeseen by those negotiating China’s accession to the WTO. This chapter discusses how WTO rules contemplate a variety of alternative economic structures besides market capitalism. It examines why, at the time of China’s WTO accession, these rules were considered sufficient for addressing the Chinese economy. Subsequent developments in China’s economic structure are generating a series of emergent tensions for the interpretation of WTO law as applied to the Chinese context. This chapter explores these tensions as well as a series of broader questions concerning the relationship between Chinese state capitalism and global trade governance. It suggests that China’s rise may well contribute to the growing fragmentation of the trade regime." --Publisher
Mark Wu, Op-Ed, It is Unwise to Negotiate Free Trade Behind Closed Doors, Fin. Times, May 27, 2015, at 7.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Trade
,
Trade Regulation
,
International Law
Type: News
Michael O. Moore & Mark Wu, Antidumping and Strategic Industrial Policy: Tit-for-Tat Trade Remedies and the China–X-Ray Equipment Dispute, 14 World Trade Rev. 239 (2015).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Trade Regulation
,
International Law
,
International Trade
Type: Article
Abstract
This article examines the relationship between antidumping duties and strategic industrial policy. We argue that the dynamic between the two instruments is more complex and elaborate than that offered by the conventional account. We use the recent China–X-Ray Equipment dispute as a case study to show that linkage between the two instruments may not be the consequence of a government-led policy but instead a result of firm-driven responses to an industrial policy. This in turn may lead to antidumping tit-for-tat behavior between WTO members. We also analyze how WTO litigation serves as a means to alter the payoff and discuss the implications and unresolved questions that remain following the China–X-Ray Equipment ruling by the WTO.
Mark Wu, Book Review, 14 World Trade Rev. 159 (2015) (reviewing The Oxford Handbook on the World Trade Organization (Amrita Narlikar, Martin Daunton & Robert M. Stern eds., 2012)).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Nonprofit & Nongovernmental Organizations
,
Treaties & International Agreements
,
International Trade
Type: Article
Mark Wu, The WTO and China’s Unique Economic Structure, in Regulating the Visible Hand? The Institutional Implications of Chinese State Capitalism (B. Liebman & C. Milhaupt eds., 2015).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
International Law
,
International Trade
Type: Book
Mark Wu, Opinion, A Free Pass for China, N.Y. Times, Apr. 3, 2014.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
International Law
,
International Trade
,
Trade Regulation
Type: News
Mark Wu & Chad Brown, Safeguards and the Perils of Preferential Trade Agreements: Dominican Republic–Safeguard Measures, 13 World Trade Rev. 179 (2014).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
Type: Article
Mark Wu, The Scope and Limits of Trade’s Influence in Shaping the Evolving International Investment Regime, in The Foundations of International Investment Law: Bringing Theory into Practice 169 (Zachary Douglas, Joost Pauwelyn & Jorge E. Vinuales eds., 2014).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
,
Treaties & International Agreements
Type: Book
Abstract
This paper examines the extent to which the international trade regime impacts the international investment regime. While commentators have identified rich areas of cross-fertilization and suggested increasing convergence between the two regimes, the evidence reveals only a limited and selected degree of influence. Specific attention is paid to four areas: the design and architecture of the investment regime; the patterns of investment treaty formation; the substance of investment treaty provisions; and treaty interpretation. Across these four areas, interactions between the two regimes remain sporadic and decentralized. Given the different normative orientations of the two regimes, one should not expect growing rapprochement in the foreseeable future between the two regimes.
Mark Wu, Why Developing Countries Won’t Negotiate: The Case of the WTO Environmental Goods Agreement, 6 Trade, L. & Dev. 93 (2014).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Trade
,
Trade Regulation
,
Developing & Emerging Nations
Type: Article
Abstract
This Article examines the question of why very few developing countries have chosen to participate in the WTO negotiations for a plurilateral Environmental Goods Agreement. The conventional belief is that developing countries have export interests at stake in environmental goods, but are avoiding the talks because of competing desires to preserve high tariff rates to protect domestic industries and/or to express their dissatisfaction with the current mode of negotiations. This Article proposes an alternative interest-based explanation: Most developing countries stand to gain very little from the talks, as they are currently structured. More important than the countervailing forces emphasized by the conventional explanation is the simple fact that developing countries, other than China, simply do not have sufficient interests at stake to join the negotiations. Drawing on original analyses of recent trade flows in environmental goods from various developing countries, the Article highlights the following: First, very few developing countries have much at stake in terms of exports. Second, among those that do export, many already have reaped significant tariff benefits through negotiations in other fora. Third, developing countries can achieve remaining objectives through free riding. Finally, the predominance of intra-developing country trade minimizes gains from a treaty dominated by advanced economies. Together, these explanations account for why most developing countries have little to gain – contrary to the conventional belief that many have interests at stake. For those who may find the lack of developing country participation to be troubling, this Article explores several potential options to entice more developing countries to join the negotiations. Overall, the Article suggests that the key to increasing the participation of developing countries will be to expand the scope of the negotiations beyond what is currently on offer, to include other environmental goods, services, and/or non-tariff barriers.
Kamal Saggi & Mark Wu, Yet Another Nail in the Coffin of Zeroing: United States – Anti-Dumping Administrative Reviews and Other Measures Related to Imports of Certain Orange Juice from Brazil, 12 World Trade Rev. 377 (2013).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Trade
,
International Law
,
Trade Regulation
Type: Article
Mark Wu, Antidumping in Asia's Emerging Giants, 53 Harv. Int'l L.J. 101 (2012).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
International Law
,
International Trade
,
Trade Regulation
Type: Article
Mark Wu, Why Not Brussels? European Community State Aid Rules and the Boeing-Airbus Dispute: Comment on Piet Jan Slott, in Law and Economics of Contingent Protection in International Trade 185 (Kyle W. Bagwell, George A. Bermann & Petros C. Mavroidis eds., 2010).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
,
European Law
Type: Book
Mark Wu, Note, Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine, 33 Yale J. Int'l L. 215 (2008).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Trade
,
International Law
,
Trade Regulation
Type: Article
Mark Wu, Comment, Piercing China's Corporate Veil: Open Questions from the New Company Law, 117 Yale L.J. 329 (2007).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
International Law
,
International Trade
Type: Article