Rethinking the World Trade Order: Towards a Better Legal Understanding of the Role of Regionalism in the Multilateral Trade Regime

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  • Format: Paperback
  • Copyright: 2010-08-26
  • Publisher: David Brown Book Co
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Regional Trade Agreements (RTAs) have proliferated at an unprecedented pace since the creation of the World Trade Organization (WTO). Although the WTO legally recognizes countries' entitlement to form RTAs, neither the WTO nor parties to RTAs have an unequivocal understanding of the relationship between the WTO and RTAs. In other words, the legal controversies, the result of uncertainty regarding the application of the WTO/GATT laws, risk undermining the objectives of the multilateral trade system. This research tackles a phenomenon that is widely believed to be heavily economic and political. It highlights the economic and political aspects of regionalism, but largely concentrates on the legal dimension of regionalism. The main argument of the book is that the first step to achieving harmony between multilateralism and regionalism is the identification of the legal uncertainties that regionalism produces when countries form RTAs without taking into account the substantive and procedural aspect of the applicable WTO/ GATT laws. The book calls for the creation of a legal instrument (i.e. agreement on RTAs) that combines all of the applicable law on RTAs, and simultaneously clarifies the legal language used therein. Likewise, the WTO should have a proactive role, not merely as a coordinator of RTAs, but as a watchdog for the multilateral system that has the power to prosecute violating RTAs. The author is aware that political concerns are top priorities for governments and policy makers when dealing with the regionalism problematic. Hence, legal solutions or proposals are not sufficient to create a better international trade system without the good will of the WTO Members who are, in fact, the players who are striving to craft more regional trade arrangements.

Table of Contents

Abstractp. XI
RÚsumÚp. XII
Acknowledgmentsp. XIII
List of Acronymsp. XV
Introduction: The Broad Themep. 1
The Nature of Regionalismp. 7
Introduction to Chapter Onep. 9
The Proliferation of RTAsp. 11
Motives for Forming RTAs and Factors in Maintaining Themp. 11
Political Motivesp. 11
Strategic Alliancesp. 11
Advantageous Dealsp. 12
Securityp. 13
Domestic Politicsp. 14
The Hegemonic World Orderp. 15
Economic Motives: Belief in Free Tradep. 17
Avoiding Tariff Barriersp. 17
Avoiding Non-Tariff Barriersp. 19
Geographic Proximityp. 20
Competitive Liberalization Movementsp. 21
Attracting Investmentsp. 21
Institutional Motivesp. 22
Other Secondary Factorsp. 23
Legal Traditions and Common Valuesp. 23
Language and RTAsp. 28
Religion Per Sep. 30
Classifying RTAsp. 31
Why Classify RTAs?p. 31
Classification of RTAs in Light of the Level of Integrationp. 32
Free Trade Agreementsp. 32
Customs Unionsp. 33
Common Marketsp. 34
Economic Unionsp. 35
Monetary Unionsp. 36
Classification of RTAs in Light of the Modes of Governancep. 36
Supra-nationalismp. 36
Intergovernmentalismp. 38
RTAs and Globalizationp. 39
An Overview of Globalizationp. 39
Globalization and RTAs: The Non-identical Twinsp. 40
Conclusion to Chapter Onep. 44
The Rule and the Exception: The Legal Dimension of RTAsp. 45
Introduction to Chapter Twop. 47
The Rule: Free Tradep. 49
The Exception: Regionalismp. 55
Legal Analysis of the Applicable Lawp. 57
RTAs Envisaged by Article XXIVp. 57
Customs Unionsp. 57
Free Trade Agreementsp. 57
Interim Agreementsp. 58
The Purpose of RTAs: Article XXIV: 4 & 5p. 60
The Scope of Article XXIV: Article XXIV and other WTO Agreementsp. 63
The Agreement on Safeguardsp. 63
The General Conditions of Safeguards in an RTA Contextp. 65
When to Include Regional Imports in the Calculation of Injuryp. 66
Article XXIV as a Defensep. 68
The Agreement on Textiles and Clothingp. 72
Article XXIV and the TBT and SPS Agreementsp. 73
The Hierarchy Test: Does Article XXIV Cover Other Agreements?p. 76
Reflections on the ˘Necessity Test÷ of Paragraph 5p. 77
Substantive Criteriap. 85
˘Substantially All the Trade÷: Article XXIV:8p. 86
˘Duties and Other Restrictive Regulations of Commerce÷: Article XXIV:8p. 89
˘ORC Not on the Whole Higher or More Restrictive÷: Article XXIV:5p. 93
˘Responable Length of Time÷: Article XXIV:5(c)p. 96
Procedural Conditionsp. 97
Notifying WTO Members: Article XXIV:7p. 97
Affected Third-Party Negotiations: Article XXIV:6p. 102
RTAs with Non-WTO Membersp. 104
The Enabling Clause: A Consideration for Developing Countriesp. 109
Institutional Efforts for Disciplinep. 117
The Understanding on Article XXIVp. 117
The Committee on Regional Trade Agreementsp. 118
The Transparency Mechanism as a Responsep. 121
The Impact of the WTO's Dispute Settlement Regimep. 123
Regionalism in the General Agreement on Trade in Servicesp. 127
Conditions to Forming Services RTAsp. 128
˘Substantial Sectoral Coverage÷p. 128
Elimination of Discriminatory Measuresp. 128
˘Barriers to Trade÷p. 130
Developing Countriesp. 130
Notification and Examinationp. 130
RTAs in Services with Non-WTO Membersp. 131
Other RTA-related Mattersp. 133
Rules of Originp. 133
Definitionsp. 133
Rules of Origin and RTAsp. 135
Mitigating the Effects of Rules of Originp. 138
Intellectual Propertyp. 141
Environmentp. 144
Competitionp. 149
Human Rightsp. 154
Laborp. 156
Trade Remediesp. 157
Anti-dumpingp. 158
Countervailing Dutiesp. 159
Safeguardsp. 160
The Future of Trade Remedies in RTAsp. 162
Servicesp. 163
Dispute Settlement between Regionalism and Multilateralismp. 167
Conclusion to Chapter Twop. 173
Case Studiesp. 175
Introduction to Chapter Threep. 177
The Crux of this Chapter: Why Examine Major RTAs Separately?p. 179
Legal Highlights of Selected RTAsp. 189
EUp. 189
Overviewp. 189
Issues to Underscore: Dispute Settlement in the EU and the WTO Dispute Settlement Systemp. 190
NAFTAp. 198
Overviewp. 198
Issues to Underscore: Dispute Settlement in NAFTA and the WTO Dispute Settlement Systemp. 200
Mercosurp. 207
Overviewp. 207
A Legal Remark on Mercosurp. 210
ASEANp. 212
Overviewp. 212
A Legal Remark on ASEANp. 214
The Greater Arab Free Trade Area (GAFTA)p. 216
Overviewp. 216
Legal Remark on the GAFTAp. 220
Conclusion to Chapter Threep. 222
Multilateralism and Regionalism: Partners or Rivals?p. 225
Introduction to Chapter Fourp. 227
The Historical Evolution of Regionalismp. 229
RTAs as Bilateralsp. 235
Countries versus Countriesp. 235
Countries versus Blocsp. 242
Blocs versus Blocsp. 245
Non-trade Bilaterals that could Encompass Trade: Bilateral Investment Treatiesp. 248
A Vertical Examination: North-South RTAsp. 257
Tensions and Conflictsp. 265
Economic Conflictsp. 265
Regulatory and Institutional Conflictsp. 271
Bilateralism and Multilateralism: Are They Different Processes that Lead to the Same Result?p. 277
Conclusion to Chapter Fourp. 279
What is Next for RTAs?p. 281
Introduction to Chapter Fivep. 283
Legal Avenues of Reformp. 285
The Multilateral Perspectivep. 285
Proposals by Member-Statesp. 286
The Proposals of the EC and Koreap. 286
Turkeys Proposalp. 290
The ACP Proposalp. 291
The Australian Perspective on Trade Liberalizationp. 293
Scholarly Proposalsp. 293
Suggested Proposalsp. 298
The General Road Mapp. 298
Particular Considerationsp. 299
A Preliminary Draft of a New Legal Instrument on RTAsp. 306
General Provisionsp. 307
Rules on Goodsp. 309
Rules on Servicesp. 317
Dispute Settlementp. 319
Conclusion to Chapter Fivep. 321
General Conclusionp. 323
Selected Bibliographyp. 329
Indexp. 355
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