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Joshua Paine


This article focuses on the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) – the diplomatic body, consisting of representatives of WTO members, that administers the dispute settlement system. Focusing on the WTO, the article provides one perspective on the relationship between international tribunals and the political bodies that oversee the governance of such tribunals. Specifically, I argue that the DSB operates as an important ‘voice’ mechanism, which enables members to provide regular feedback to WTO adjudicators, and helps sustain the internal legitimacy of WTO adjudication. However, the DSB can also be used in ways that undermine judicial independence. In short, the DSB is a key site where the tension plays out between WTO adjudicators’ independence from members, and control by, and accountability to, members. The episodes examined in detail to develop this argument are the crisis of a generation ago over amicus curiae briefs, and the ongoing crisis over Appellate Body appointments.

Federico Ortino and Emily Lydgate


The number of international agreements purporting to liberalise trade, mainly focused on reducing protectionist measures through the imposition of general principles, has increased greatly over the last 25 years. More recently, the United States and the European Union (EU) concluded comprehensive agreements covering trade in goods, trade in services, and foreign investment. This article inquires whether, and the extent to which, such agreements represent a departure from previous practice. It focuses on (a) the instruments employed to address domestic regulation affecting trade in services and (b) three specific agreements concluded between 2016 and 2018: the EU-Canada Comprehensive Economic and Trade Agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the United States-Mexico-Canada Agreement. While these recent Preferential Trade Agreements put forward novel approaches to regulatory diversity affecting trade in services, it is too early to ascertain whether these will have any ground-breaking impact in terms of services trade liberalisation.

Fiona Smith


Following the 2016 referendum on its continued membership of the European Union (EU), the United Kingdom (UK) is now withdrawing from, and negotiating a new relationship with, the EU. Both the UK’s exit and future relationship with the EU must conform to World Trade Organization (WTO) rules. The WTO’s rules are only partial and were not designed to facilitate a state’s withdrawal from a regional trade agreement, the contraction of an area of liberalized trade, nor the (re)emergence of ‘protectionist’ trade barriers. The EU and UK must transcend this problem by creating legally binding rules in an otherwise vacant legal space. Yet Brexit is a shock to the WTO’s rules and ethos: diplomatic negotiation is augmenting and replacing regulation in ways that affect the WTO, and the bilateral and multilateral agreements to which the EU and UK are both parties. This shock is a fundamental change to the prevailing trade orthodoxy.

James Harrison


This article explores the implications of the proliferation of labour provisions in free trade agreements (FTAs) in recent years. It reviews a relatively new form of empirical scholarship on the effectiveness of US and EU labour provisions. In doing so, it helps to identify a large gap between, on the one hand, the rhetoric of policymakers on the importance of such provisions and, on the other, the reality of what they achieve in practice. Reform efforts on both sides of the Atlantic are then examined to find that these also contain major deficiencies. The article therefore asks whether the ineffectiveness of the labour rights agenda in FTAs should be seen as part of a burgeoning class critique of trade policy. In the current political climate, it also suggests that the deficiencies identified, and how they should be resolved, require far greater engagement from both mainstream academia and trade policy communities.

Meredith Kolsky Lewis


This article examines the historical experience with and understanding of plurilateral trade agreements throughout the General Agreement on Tariffs and Trade (GATT) and World Trade Organization (WTO) to better contextualise assessments of the continued viability of the single undertaking and the recent resurgence of plurilateralism in international trade law. Plurilateral agreements have been playing a significant role in international trade relations for the past fifty years. As such, the current wave of plurilateral agreements does not represent a sea change in approach to trade liberalisation, but rather a continuation of a process that originated many decades ago. Further, while the WTO agreements are multilateral in that they apply to all members, they can also be seen as plurilateral in that not all WTO members have identical responsibilities under such agreements. The article concludes that plurilateralism and multilateralism have much in common, and hence may be mutually supportive rather than binary choices.

Caroline Henckels and Markus Wagner

Franziska Sucker


In a plethora of new plurilateral treaties, two different economic governance models emerge. One is market driven and aims for closer governmental coordination (the coordination model); the other retains a considerably higher degree of regulatory autonomy (the autonomy model). This article demonstrates that South Africa resorts to both of these models when concluding preferential trade agreements. Most notably, South Africa’s policy focus is shifting to a developmental integration approach that combines market integration with greater emphasis on industrial and infrastructure development and diversification, and associated distributional concerns. This phenomenon becomes most apparent through the inclusion of elements of variable geometry, acknowledging the differences in the level of development among the parties, and closer regulatory cooperation in areas beyond trade and trade facilitation. Additionally, South Africa has included safeguard provisions, public policy exceptions, World Trade Organization (WTO)-plus standards and, in various areas, imported rules developed outside the WTO framework.

Mark Davison and Patrick Emerton


This article considers the interpretation of provisions in international economic agreements that protect intellectual property as they relate to public health measures, and in particular to restrictions on the use of tobacco trademarks. A series of decisions, most recently the World Trade Organization (WTO) panel decision holding that Australia’s plain packaging measures for tobacco products comply with WTO obligations, allow for some generalisations. These include: (1) the nature of intellectual property rights is to confer a privilege of exclusive use on the rights-holder; (2) the interpretation of generally-worded treaty provisions is apt to be informed by recognition of the power of States to regulate for the purposes of public health; and (3) where provisions contain their own specifically-worded balancing tests, any direct or indirect reference to regulation for public health contained in the treaty is likely to be treated as weighing very heavily in favour of the legality of regulatory measures.