Abstract
While the multilateral GATT/WTO system has been accompanied by “bilateral”, “regional”, “free” or “preferential” trade agreements since quite some time, the recent increase in number and relevance of such agreements, including “mega-regional” agreements may be seen as a categorical change. These new agreements do not only contain quite extensive “deep” rules, which go much further than WTO disciplines and address a number of issues, which had been controversial in the WTO so far. Nevertheless, these new agreements do not formally mark a deviation from the WTO system, but can be seen as set-top agreements. The resulting “hybrid” structure needs care in order to prevent duplication and conflict. Mega-regionals and other recent trade agreements raise a number of questions, which go beyond the traditional rules at hand, mainly Art. XXIV GATT and V GATS. Critical issues do arise not so much in view of the “exclusivity” of provisions but to the contrary, because they attempt to write rules and standards for the world economy at large.
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Notes
- 1.
See, for instance, World Economic Forum (2014).
- 2.
See Lester and Manak (in this volume).
- 3.
See Schill and Bray (in this volume); Nowrot (in this volume); Mercurio (in this volume).
- 4.
See Petersmann (in this volume).
- 5.
See Schill and Bray (in this volume); Nowrot (in this volume); Mercurio (in this volume).
- 6.
See Frey (in this volume).
- 7.
European Commission (2008).
- 8.
See Cottier, Jost and Schupp (in this volume); Correa (in this volume).
- 9.
For instance, Article 21.8 CETA.
- 10.
Article 207 of the consolidated version of the Treaty on the Functioning of the European Union (TFEU, signed 9 May 2008) OJ 2008 C 115/47.
- 11.
See Schill and Bray (in this volume); Nowrot (in this volume).
- 12.
See OECD (2013).
- 13.
See North American Agreement on Environmental Cooperation (signed 14 Sep 1993, entered into force 1 Jan 1994). http://www.sice.oas.org/trade/nafta/Environ.asp. Accessed 30 Apr 2016; North American Agreement on Labour Cooperation (signed 17 Dec 1992, entered into force 1 Jan 1994). http://www.labour.gc.ca/eng/relations/international/agreements/naalc.shtml. Accessed 11 Apr 2016.
- 14.
Article 23.2 and Article 24.3 CETA.
- 15.
Article 23.3, Article 23.5 and Article 24.4 CETA.
- 16.
Article 23.4 and Article 24.5 CETA.
- 17.
Article 23.10 and Article 24.7 CETA.
- 18.
See, e.g., EU PTAs with Mediterranean countries: http://ec.europa.eu/trade/policy/countries-and-regions/agreements/#_mediterranean. Accessed 16 June 2016; Stabilization and Association Agreements between EU and Albania, EU and the Former Yugoslav Republic of Macedonia, EU and Montenegro. http://ec.europa.eu/trade/policy/countries-and-regions/agreements/#_europe. Accessed 30 Apr 2016.
- 19.
See, e.g., Article 75 of the Euro-Mediterranean Agreement Establishing an Association between the European Communities and their Member States, of the one Part, and the State of Israel, of the other part (signed 20 Nov 1995, entered into force 1 June 2000) OJ L 147/3; Article 82 of the Euro-Mediterranean Agreement Establishing an Association between the European Communities and their Member States, of the one Part, and the Arab Republic of Egypt, of the Other Part (signed 25 June 2001, entered into force 1 June 2004). http://eeas.europa.eu/egypt/aa/06_aaa_en.pdf. Accessed 16 June 2016; Article 86 of Euro-Mediterranean Agreement Establishing an Association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (signed 26 Feb 1996, entered into force 1 Mar 2000) OJ L 70/2.
- 20.
See, e.g., Article 22.9 of the Free Trade Agreement between The United States of America and The Republic of Korea (signed 30 June 2007, entered into force 15 Mar 2012). https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text. Accessed 16 June 2016; Article 15.7 of the Free Trade Agreement between The Government of Australia and The Government of People’s Republic of China (signed 17 June 2015, entered into force 20 December 2015). http://dfat.gov.au/trade/agreements/chafta/official-documents/Documents/chafta-agreement-text.pdf. Accessed 16 June 2016; Article N-08, Article N-09, Article N-10, Article N-11 of the Free Trade Agreement between The Government of Canada and the Government of the Republic of Chile (signed 5 Dec 1996, entered into force 5 Jul 1997). http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/chile-chili/menu.aspx?lang=en. Accessed 16 June 2016.
- 21.
See also Article 22.13 of the Free Trade Agreement between The United States of America and The Republic of Korea; Article N-18 of the Free Trade Agreement between The Government of Canada and the Government of the Republic of Chile.
- 22.
See also WTO Database (2016).
- 23.
- 24.
Puig and Tat (2015).
- 25.
See WTO, United States—Preliminary Determinations with respect to Certain Softwood Lumber from Canada, Panel Report (27 Sept 2002) WT/DS236/R; WTO, United States—Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, Appellate Body Report (19 Jan 2004) WT/DS257/AB/R; WTO, United States—Final Dumping Determination on Softwood Lumber from Canada, Appellate Body Report (15 Aug 2006) WT/DS264/AB/RW; WTO, United States—Investigation of the International Trade Commission in Softwood Lumber from Canada, Appellate Body Report (13 Apr 2006) WT/DS277/AB/RW; WTO, United States—Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, Notification of Mutually Agreed Solution (16 Nov 2006) WT/DS257/26, G/L/539/Add.1, G/SCM/D45/2.
- 26.
See WTO, United States—Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, Notification of Mutually Agreed Solution (16 Nov 2006) WT/DS257/26, G/L/539/Add.1, G/SCM/D45/2.
- 27.
Chapter 19 NAFTA.
- 28.
See WTO, Argentina—Poultry Anti-Dumping Duties, Panel Report (22 Apr 2003) WT/DS241/R.
- 29.
See WTO, Mexico—Tax Measures on Soft Drinks and Other Beverages, Panel Report (7 Oct 2005) WT/DS308/R; WTO, Mexico—Tax Measures on Soft Drinks and Other Beverages, Appellate Body Report (6 Mar 2006) WT/DS308/AB/R.
- 30.
- 31.
See WTO, Argentina—Poultry Anti-Dumping Duties, Panel Report (22 Apr 2003) WT/DS241/R, paras. 7.18, 7.19.
- 32.
WTO, Argentina—Poultry Anti-Dumping Duties, para. 7.36.
- 33.
WTO, Argentina—Poultry Anti-Dumping Duties, para. 7.37.
- 34.
WTO, Argentina—Poultry Anti-Dumping Duties, para. 7.37.
- 35.
WTO, Argentina—Poultry Anti-Dumping Duties, para. 7.38; para. 7.39. In drawing this conclusion, the panel did not take into consideration, however, that Brazil had signed the Protocol a few days before requesting the establishment of the Panel. It is therefore an open question, whether in the light of Article 18 of the Vienna Convention on the Law of the Treaties (VCLT) the signature may constitute a “statement” in view of the principle of estoppel, see Article 18 VCLT. This article provides: “Obligation Not to Defeat the Object and Purpose of A Treaty Prior to Its Entry into Force: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.”
- 36.
See WTO, Argentina—Poultry Anti-Dumping Duties, para. 7.38.
- 37.
See, for instance, Article 13.16 of Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part (signed 6 Oct 2010, entered into force 1 July 2011) OJ L 127/5.
- 38.
See WTO, Turkey—Restrictions on Imports of Textile and Clothing Products, Panel Report (31 May 1999) WT/DS34/R; WTO, Turkey—Restrictions on Imports of Textile and Clothing Products, Appellate Body Report (22 Oct 1999) WT/DS34/AB/R.
- 39.
WTO, Turkey—Restrictions on Imports of Textile and Clothing Products, Appellate Body Report (22 Oct 1999) WT/DS34/AB/R, para. 45.
- 40.
WTO, Turkey—Restrictions on Imports of Textile and Clothing Products, Appellate Body Report, para. 58.
- 41.
WTO, Turkey—Restrictions on Imports of Textile and Clothing Products, Appellate Body Report, para. 63.
- 42.
See Lester and Manak (in this volume).
- 43.
See Cottier, Jost and Schupp (in this volume); Correa (in this volume).
- 44.
See Schill and Bray (in this volume); Nowrot (in this volume); Mercurio (in this volume).
- 45.
See Bourcieu (in this volume).
- 46.
See Pauwelyn (in this volume).
- 47.
See Petersmann (in this volume).
- 48.
See, for instance, Donohue (2014).
- 49.
On spill-over effects see Pauwelyn (in this volume).
- 50.
On democratic deficits see Petersmann (in this volume).
- 51.
See Lester and Manak (in this volume).
- 52.
See Schill and Bray (in this volume); Nowrot (in this volume); Mercurio (in this volume).
- 53.
See Schill and Bray (in this volume).
- 54.
See Schill and Bray (in this volume).
- 55.
See, for instance, Article 18 of Chapter II of the Free Trade Agreement between The EFTA States and The Republic of Chile (signed 26 June 2003, entered into force 1 Dec 2004). http://www.efta.int/media/documents/legal-texts/free-trade-relations/chile/EFTA-Chile%20Free%20Trade%20Agreement.pdf. Accessed 16 June 2016.
- 56.
See Frey (in this volume).
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Stoll, PT. (2017). Mega-Regionals: Challenges, Opportunities and Research Questions. In: Rensmann, T. (eds) Mega-Regional Trade Agreements. Springer, Cham. https://doi.org/10.1007/978-3-319-56663-4_1
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