9789088900365

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.

Abstract	p. XI
Résumé	p. XII
Acknowledgments	p. XIII
List of Acronyms	p. XV
Introduction: The Broad Theme	p. 1
The Nature of Regionalism	p. 7
Introduction to Chapter One	p. 9
The Proliferation of RTAs	p. 11
Motives for Forming RTAs and Factors in Maintaining Them	p. 11
Political Motives	p. 11
Strategic Alliances	p. 11
Advantageous Deals	p. 12
Security	p. 13
Domestic Politics	p. 14
The Hegemonic World Order	p. 15
Economic Motives: Belief in Free Trade	p. 17
Avoiding Tariff Barriers	p. 17
Avoiding Non-Tariff Barriers	p. 19
Geographic Proximity	p. 20
Competitive Liberalization Movements	p. 21
Attracting Investments	p. 21
Institutional Motives	p. 22
Other Secondary Factors	p. 23
Legal Traditions and Common Values	p. 23
Language and RTAs	p. 28
Religion Per Se	p. 30
Classifying RTAs	p. 31
Why Classify RTAs?	p. 31
Classification of RTAs in Light of the Level of Integration	p. 32
Free Trade Agreements	p. 32
Customs Unions	p. 33
Common Markets	p. 34
Economic Unions	p. 35
Monetary Unions	p. 36
Classification of RTAs in Light of the Modes of Governance	p. 36
Supra-nationalism	p. 36
Intergovernmentalism	p. 38
RTAs and Globalization	p. 39
An Overview of Globalization	p. 39
Globalization and RTAs: The Non-identical Twins	p. 40
Conclusion to Chapter One	p. 44
The Rule and the Exception: The Legal Dimension of RTAs	p. 45
Introduction to Chapter Two	p. 47
The Rule: Free Trade	p. 49
The Exception: Regionalism	p. 55
Legal Analysis of the Applicable Law	p. 57
RTAs Envisaged by Article XXIV	p. 57
Customs Unions	p. 57
Free Trade Agreements	p. 57
Interim Agreements	p. 58
The Purpose of RTAs: Article XXIV: 4 & 5	p. 60
The Scope of Article XXIV: Article XXIV and other WTO Agreements	p. 63
The Agreement on Safeguards	p. 63
The General Conditions of Safeguards in an RTA Context	p. 65
When to Include Regional Imports in the Calculation of Injury	p. 66
Article XXIV as a Defense	p. 68
The Agreement on Textiles and Clothing	p. 72
Article XXIV and the TBT and SPS Agreements	p. 73
The Hierarchy Test: Does Article XXIV Cover Other Agreements?	p. 76
Reflections on the ôNecessity Testö of Paragraph 5	p. 77
Substantive Criteria	p. 85
ôSubstantially All the Tradeö: Article XXIV:8	p. 86
ôDuties and Other Restrictive Regulations of Commerceö: Article XXIV:8	p. 89
ôORC Not on the Whole Higher or More Restrictiveö: Article XXIV:5	p. 93
ôResponable Length of Timeö: Article XXIV:5(c)	p. 96
Procedural Conditions	p. 97
Notifying WTO Members: Article XXIV:7	p. 97
Affected Third-Party Negotiations: Article XXIV:6	p. 102
RTAs with Non-WTO Members	p. 104
The Enabling Clause: A Consideration for Developing Countries	p. 109
Institutional Efforts for Discipline	p. 117
The Understanding on Article XXIV	p. 117
The Committee on Regional Trade Agreements	p. 118
The Transparency Mechanism as a Response	p. 121
The Impact of the WTO's Dispute Settlement Regime	p. 123
Regionalism in the General Agreement on Trade in Services	p. 127
Conditions to Forming Services RTAs	p. 128
ôSubstantial Sectoral Coverageö	p. 128
Elimination of Discriminatory Measures	p. 128
ôBarriers to Tradeö	p. 130
Developing Countries	p. 130
Notification and Examination	p. 130
RTAs in Services with Non-WTO Members	p. 131
Other RTA-related Matters	p. 133
Rules of Origin	p. 133
Definitions	p. 133
Rules of Origin and RTAs	p. 135
Mitigating the Effects of Rules of Origin	p. 138
Intellectual Property	p. 141
Environment	p. 144
Competition	p. 149
Human Rights	p. 154
Labor	p. 156
Trade Remedies	p. 157
Anti-dumping	p. 158
Countervailing Duties	p. 159
Safeguards	p. 160
The Future of Trade Remedies in RTAs	p. 162
Services	p. 163
Dispute Settlement between Regionalism and Multilateralism	p. 167
Conclusion to Chapter Two	p. 173
Case Studies	p. 175
Introduction to Chapter Three	p. 177
The Crux of this Chapter: Why Examine Major RTAs Separately?	p. 179
Legal Highlights of Selected RTAs	p. 189
EU	p. 189
Overview	p. 189
Issues to Underscore: Dispute Settlement in the EU and the WTO Dispute Settlement System	p. 190
NAFTA	p. 198
Overview	p. 198
Issues to Underscore: Dispute Settlement in NAFTA and the WTO Dispute Settlement System	p. 200
Mercosur	p. 207
Overview	p. 207
A Legal Remark on Mercosur	p. 210
ASEAN	p. 212
Overview	p. 212
A Legal Remark on ASEAN	p. 214
The Greater Arab Free Trade Area (GAFTA)	p. 216
Overview	p. 216
Legal Remark on the GAFTA	p. 220
Conclusion to Chapter Three	p. 222
Multilateralism and Regionalism: Partners or Rivals?	p. 225
Introduction to Chapter Four	p. 227
The Historical Evolution of Regionalism	p. 229
RTAs as Bilaterals	p. 235
Countries versus Countries	p. 235
Countries versus Blocs	p. 242
Blocs versus Blocs	p. 245
Non-trade Bilaterals that could Encompass Trade: Bilateral Investment Treaties	p. 248
A Vertical Examination: North-South RTAs	p. 257
Tensions and Conflicts	p. 265
Economic Conflicts	p. 265
Regulatory and Institutional Conflicts	p. 271
Bilateralism and Multilateralism: Are They Different Processes that Lead to the Same Result?	p. 277
Conclusion to Chapter Four	p. 279
What is Next for RTAs?	p. 281
Introduction to Chapter Five	p. 283
Legal Avenues of Reform	p. 285
The Multilateral Perspective	p. 285
Proposals by Member-States	p. 286
The Proposals of the EC and Korea	p. 286
Turkeys Proposal	p. 290
The ACP Proposal	p. 291
The Australian Perspective on Trade Liberalization	p. 293
Scholarly Proposals	p. 293
Suggested Proposals	p. 298
The General Road Map	p. 298
Particular Considerations	p. 299
A Preliminary Draft of a New Legal Instrument on RTAs	p. 306
General Provisions	p. 307
Rules on Goods	p. 309
Rules on Services	p. 317
Dispute Settlement	p. 319
Conclusion to Chapter Five	p. 321
General Conclusion	p. 323
Selected Bibliography	p. 329
Index	p. 355
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Rethinking the World Trade Order: Towards a Better Legal Understanding of the Role of Regionalism in the Multilateral Trade Regime

9088900361

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