WTO Law and Trade Policy Reform for Low-Carbon Technology Diffusion

Common Concern of Humankind, Carbon Pricing, and Export Credit Support

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Author: Zaker Ahmad
In WTO Law and Trade Policy Reform for Low-Carbon Technology Diffusion, Zaker Ahmad puts a spotlight on the crucial importance of dismantling market barriers and offering incentives to improve clean technology access and diffusion across borders. To that end, the author argues for a synergistic co-development of the international trade and climate legal regimes. Two case studies – one on carbon pricing, another on official export credit support – place the theoretical arguments in a practical trade policy setting. The emerging doctrine and principle of Common Concern of Humankind serves as the key theoretical and structural foundation of the work. A useful read for anyone interested in an effective role of trade law and policy to facilitate climate action.
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Zaker Ahmad obtained his Dr. iur. from the World Trade Institute at Bern in 2020. He is an Assistant Professor of Law at the University of Chittagong in Bangladesh.
Acknowledgments
List of Boxes and Figures
Abbreviations and Acronyms

Introduction

1 Climate Technology, Trade, and the Doctrine of Common Concern
I Mitigation of Climate Change: Fact vs. Law
II The LCTs as an Important Puzzle Piece
 A  Technology in Mitigation Pathways
 B  The Concept and Scope of LCTs
III International Trade for Low-carbon Technology Diffusion
 A  Aspects of the Relationship between Trade and Technology
 B  The Disconnect between Trade and Climate Legal Regimes
 C  Fragmentation, or Regime Interactions
 D  Paths that Lead to Coherence Building
IV Common Concern of Humankind: History and Meaning
 A  Inception and Evolution of the Notion
 B  Making of a Common Concern
 C  Legal Consequence
V Towards a New Doctrine
 A  A Dynamic Gateway for ‘Common Concerns’
 B  Enhanced Legal Consequences
 C  Forward Evolution
VI Application in the Trade-climate Interface
 A  Terms of Relationship with Key Notions
 B  Implications for Low-carbon Technology Diffusion
VII Conclusion

2 Rules and Facts on Low-Carbon Technology Diffusion
I The Origin of the Polemics on Technology Transfer
 A  Unsuccessful Code Negotiations
 B  Regime Specific Trends
II Developments in the Climate Regime
 A  Evolution of Institutional Frameworks
 B  Evolution of Financial Support Systems
 C  Other Avenues Contributing to Low-carbon Technology Diffusion
 D  Summary Analysis

III Growing Empirical Understanding of Technology Diffusion Barriers
 A  Studies on the Relevance of Intellectual Property Rights
 B  Sector and Country-Focused Studies
 C  Technology Barriers Perceived by Developing Countries
 D  Summary Analysis

IV Developments in Trade Regulation
 A  Existing Multilateral Rules
 B  Negotiations and Deliberations at the WTO and UNCTAD
 C  Trade Disputes Regarding Technology Transfer and Renewables
 D  Non-multilateral Approaches
 E  Summary Analysis
V Conclusion

3 Towards a Cooperation Based Trade Action Agenda
I ‘Common Concern’ as a Guide to Trade Cooperation
 A  The Challenge of Cooperation and Common Concern Doctrine
 B  Key Issues Regarding a Novel Duty to Cooperate
II Cooperation Regarding Low-carbon Technology Diffusion
 A  Outline of the Proposal
 B  Identifying Actors and Respective Motivations
 C  Identifying Relevant Measures
 D  A New Balance
 E  Ensuring Compliance
III Implementing the New Approach
 A  Overcoming Political Inertia
 B  Tasks at the Multilateral Level
 C  Incorporation in Preferential Trade Agreements (PTAs)
 D Domestic Actions
IV Conclusion

4 Assisting the Diffusion of Low- Carbon Technology through Emission Pricing
I Pricing Emission using Taxes and Tariffs: A Brief Introduction
 A Rationale behind Carbon Pricing for Technology Diffusion
 B Design Considerations for an Effective and Equitable Measure
 C The Need for International Cooperation
 D The Measure Proposed

II WTO Eligibility of a Carbon Pricing Measure
 A Eligibility of Carbon Taxes
 B Eligibility of Carbon Tariffs
III Discriminatory Impact of Carbon Pricing
 A Product Comparability: The Test of ‘Likeness’
 B Standard of Discrimination: Change in Conditions of Competition
 C Justifying the Pricing Measures
IV Alternate Reading Aided by Common Concern
 A Regarding the Test of ‘Likeness’
 B Regarding the Legal Standard of Discrimination
 C Regarding the General Exception
V Conclusion

5 Encouraging Technology Export through Public Financial Support
I Prospects and Challenges of Public Financial Support
 A The Problem and Potential of Public Finance
 B Possible Avenues of Public Support
 C The Promise and Challenge of the Export Credit Agencies (ECAS)
 D The Proposed Measure
II ECA Activities and the WTO Subsidies Agreement

 A  The Key Questions
 B  Scope of the Agreement
 C  Export Incentive and Regulation on Prohibited Subsidies
 D  Other Challenges to the Export Promotion Incentives

III Looking Forward: Role of Common Concern
 A  As an Aid to Interpretation
 B  As a Guide for Reform
 C  Cooperation and Homework Avenues
IV Conclusion

6 Unilateral Trade Sanctions to Secure Compliance with the Common Concern Doctrine
I The Domain of Unilateral Trade Sanctions
 A  Arguments in Favour of Unilateral Sanctions
 B  Concerns Regarding Unilateral Sanctions
II Countermeasures and Common Concern of Clean Technology Diffusion
 A  Recap of the Doctrine’s Position
 B  Operational Specifications
III Position under Public International Law
IV Position under the Multilateral Trade Rules
 A  Trade Sanctions under the Exception Clauses
V Way Forward: Influence of Common Concern
VI Conclusion

Conclusion: Summary and Outlook
I International Trade, Clean Technologies and Common Concern
 A  Trade Cooperation for Technology Diffusion
 B  Role of Domestic Trade Policy Measures
 C  Utility of Unilateral Trade Countermeasures
II Lessons Learnt about the Doctrine
III Outlook

Annex – Scope of Clean Technologies
Bibliography
Index

Policy professionals, and academics working on the issue of trade, climate change, and technology transfer are key readers. Also useful for anyone interested in the role of trade in service of climate mitigation.