With the dispute resolution mechanism of the WTO in the doldrums, there is renewed attention to dispute resolution under regional trade agreements. This is not a new topic, but in the past three years, has gained added urgency. There are not many examples, but one of the most significant was the NAFTA Chapter 20 Supply Management case.This paper built on a presentation I had given at Columbia University,“The dog that did not bark”.
As 2020 came to a close, for all the disruptions of the Pandemic and challenges of a dysfunctional WTO, there was good news in the world of international trade law: the conclusion of negotiations for the Regional Comprehensive and Economic Partnership (RCEP) in the Asia-Pacific. I gave a brief presentation on the dispute resolution mechanism of the RCEP along with a distinguished panel of experts.
The Twelfth Ministerial Conference (MC12) is soon upon us. Among the most important topics that Ministers have to address to make the WTO fit-for-purpose is the structure of negotiations and decision-making. This, too, is not a new topic: I gave a talk on “Variable Geometry” in the early aughts that remains relevant (even if I might disagree with some of my own conclusions).
These days, it seems as if we talk about free trade agreements or regional integration in the context of everything other than actual free trade. As mentioned above, there is renewed interest in regional dispute resolution. There is also renewed interest in incorporating environmental considerations in FTAs. There is much more existing complementarity, as I discuss in a brief note, than meets the eye.
As of this update (9/21), carbon-pricing is all the rage. As it should be. The EU has now the template for a carbon border adjusted mechanism and China has implemented one of the largest emissions trading schemes in the world. Is this going to be enough? Or all of this is merely another “disguised barrier to international trade”? In a 2019 paper, I identified the trade-distorting effects of sector-specific emissions trading mechanisms and proposed how they could be caught using the existing legal and institutional framework of the WTO.
International trade negotiations and competition issues have intersected throughout my career, starting with my first posting in Brussels. As the first Deputy Commissioner for Competition Promotion at Canada’s Competition Bureau, I had the honour of launching the Competition Promotion Branch. The Branch was responsible for negotiating both international cooperation agreements with other competition authorities, and competition chapters (skeletal and rudimentary as they were and remain) in trade agreements. The Branch was also responsible for competition advocacy. In my last major advocacy exercise in Canada, I delivered a speech on how trade law in necessarily dependent on a functioning competition framework.
My last substantive speech as Deputy Commissioner was at Pembroke College, Oxford. It was on a topic that was, and remains, close to my heart, even as the market has somehow dealt with the early controversies: the interaction between “disruptive” or transformative technologies, legacy interests, and regulatory interests. A true collaborative effort at the Bureau, the paper was well-received by peers, some of whom have become good friends over the years.
As part of that critical engagement – this time, not just with the judicial instances of the WTO, but with the academic community as a practitioner, I served as rapporteur for a workshop held at the University of Leuven. It was a remarkable gathering of experts, and the results of our very engaging conversation about the judicial function in international trade law can be found here.