In a previous issue of this Journal, Julia Ya Qin published a critical analysis of the World Trad... more In a previous issue of this Journal, Julia Ya Qin published a critical analysis of the World Trade Organization Appellate Body (AB) Report on the China-Publications case. This comment questions her conclusion that the AB has “pushed the limits of global governance” in the China-Publications case.
In the World Trade Organization (WTO) jurisprudence, the Appellate Body (AB) has repeatedly affir... more In the World Trade Organization (WTO) jurisprudence, the Appellate Body (AB) has repeatedly affirmed that WTO Members have the prerogative right in setting any level of protection that they deem appropriate (ALOP). At the same time, WTO Agreements provide for disciplines that a WTO Member must respect when it selects regulatory measures to fulfill its ALOP. Thus, a WTO Member's autonomy in setting its ALOP, on the one hand, and the full force of other disciplines, on the other hand, are in a constant state of tension. Then, exactly how does a panel balance a Member's right of setting its ALOP with a myriad of other trade obligations? To what extent is this right respected in the WTO dispute settlement processes? This article argues that the case law has confirmed that a Member's obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) must be read in light of the Member's chosen ALOP, and that the AB has also demonstrated sensitivity and deference to a Member's ALOP under the SPS Agreement. The same conclusion, however, cannot be easily applied to Article XX of the General Agreement on Tariffs and Trade 1994 (GATT 1994). Indeed, the case law under Article XX has demonstrated inconsistencies as to when WTO Members' right to set their ALOP will be respected. I argue that such inconsistencies may be explained by a value-based, pragmatic approach adopted by the AB.
This article sets forth two arguments. First, to respect a WTO Member's national regulatory auton... more This article sets forth two arguments. First, to respect a WTO Member's national regulatory autonomy in the world trading system is essential to ensure the WTO's long term success in light of the WTO's institutional constraints, the WTO's underlying philosophy and the WTO's nature as an incomplete contract. Second, and contrary to many popular criticisms against the WTO's allegedly intrusive penetration to national regulatory autonomy, this article argues that these critics have failed to appreciate the recent WTO case law developments. Indeed, the recent WTO case law has shown that the WTO Appellate Body has quietly fine-tuned its previous jurisprudence and as a result, WTO Members enjoy a broader scope of regulatory autonomy than conventionally assumed.
Much ink has been splashed on the ideological, conceptual, and practical challenges that China’s ... more Much ink has been splashed on the ideological, conceptual, and practical challenges that China’s state capitalism has posed to global trade rules. There is a growing perception that the current international trade rules are neither conceptually coherent nor practically effective in tackling China’s state capitalism. This perception has not only led to the emergence of new trade rules in regional trade agreements, but also culminated in the US-China trade war, only further aggravated by the Covid-19 pandemic. This Article contributes to the debate of what trade rules may be needed to counteract China’s state capitalism by unpacking the black box of China’s state capitalism. Based on an analysis of the nature of China’s state capitalism, this Article provides a preliminary evaluation of current trade rules taken to counteract China’s state capitalism, in particular the new rules in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and explain why they are unli...
This article questions the consistency of the EU anti-dumping regulation with the WTO Anti-dumpin... more This article questions the consistency of the EU anti-dumping regulation with the WTO Anti-dumping Agreement. It argues that with the expiry of paragraph 15(a)(ii) on 11 December 2016, China’s WTO Accession Protocol may no longer provide the legal basis for the EU to set aside Chinese domestic prices in determining normal value of Chinese products. Moreover, given that the European Commission has consistently used costs that are not actual costs of Chinese producers in constructing normal value of Chinese products, the EU anti-dumping practice runs the risk of being inconsistent with WTO law since the WTO Anti-dumping Agreement does not allow for such flexibility when determining costs of production in the exporting country. Drawing on Jackson’s interface theory, this article further argues that the EU’s introduction of the new concept ‘significant market distortions’ to anti-dumping practices should be conceptualized as an effort to reconstitute alternative interface mechanisms whe...
The objective of this article is to critically review the case law on public morals exception in ... more The objective of this article is to critically review the case law on public morals exception in the multilateral trading system and argue against the World Trade Organization (WTO) Appellate Body’s exceedingly deferential approach to the meaning and identification of public morals in international trade disputes. Admittedly, the WTO Appellate Body’s judicial minimalism approach to trade dispute settlement has so far prevented it from making any broad claims about public morals exception. Nevertheless, I argue that the Appellate Body has already waded into treacherous waters. Going forward, the WTO Appellate Body must be cautious so as not to permit moral imperialism and put the delicately balanced multilateral trading system at grave risk. For this purpose, I propose a more nuanced approach to define public morals as well as manage its extraterritorial application in international trade law.
Law & Society: International & Comparative Law eJournal, 2016
International standards have assumed special legal significance in the World Trade Organization (... more International standards have assumed special legal significance in the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (‘TBT Agreement’). This article conceptualizes international standards as global public goods and argues for applying global administrative law principles to vet international standards before they are afforded quasi-legislative status in the WTO law. We traced how the WTO Appellate Body has changed its original hands-off approach in EC – Sardines in 2002 to a more intrusive approach in US – Tuna II in 2012. We submit that the WTO Appellate Body’s new approach to international standards marks a distinctive pathway for the development of global administrative law in producing global public goods.The compliance with global administrative law principles set out in the TBT Committee Decision in turn provides international standardizing bodies with additional legitimacy and accountability. However, contrary to popular opinion, we submit that adopt...
When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the p... more When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the prospect that China’s World Trade Organization membership would boost international trade, encourage China’s restructuring toward a market economy, discipline the domestic legal system, and strengthen the rule of law in China. More recently, however, serious concerns have been raised regarding China’s record on the rule of law. The first National Security Strategy report issued by the Trump Administration in December 2017 claimed that China’s increased participation in the liberal international economic system had not effectuated China’s deeper engagement with, or respect for, the rule of law. The purpose of this article is to take a critical look at the two contrasting narratives on the impact of the World Trade Organization on China’s rule of law construction over the past two decades. It concludes that, although the World Trade Organization has played a positive role in advancing the r...
One category of voluntary approaches to environmental governance is ecolabels used to nudge consu... more One category of voluntary approaches to environmental governance is ecolabels used to nudge consumers towards purchasing environmentally friendly products. The purpose of this article is to critically review the trade law implications of voluntary ecolabels, with special reference to the EU Ecolabel. For a long time, the lack of trade disputes related to the Agreement on Technical Barriers to Trade (TBT Agreement) before the World Trade Organization Dispute Settlement Body rendered research on the legality of voluntary ecolabels in trade law unavoidably speculative. Consequently, the existing scholarship has failed to inform the environment law community clearly how trade law views voluntary ecolabels. This article aims to fill the gap in the literature by evaluating the consistency of the EU Ecolabel with the TBT rules. The article concludes that it is highly unlikely that the EU Ecolabel may be found inconsistent with the TBT Agreement. Nevertheless, there remains some legal risks.
The emergence of mega-regional trade agreements like the Trans-Pacific Partnership (TPP) and the ... more The emergence of mega-regional trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) threatens to fragment global trade governance in fundamental ways. An important question, yet so far under-explored, is how the rising powers currently being excluded from the mega-regionals, such as China, view this new development in global economic governance. This article intends to fill this gap in the literature from a Chinese perspective. Specifically, this article addresses the following questions: why has China changed its initial suspicious attitude to a more neutral stance toward the TPP recently? What are the short-term and long-term effects of the TPP on China's economic growth and geo-political influence? How will China deal with a myriad of challenges posed by the TPP going forward, be it in or outside the TPP? After the analysis of a range of relevant political, economic and legal factors, I submit that the Chinese government has adopted what I call a 'tripartite strategy' toward the TPP. What remains to be seen is whether this tripartite strategy provides the best roadmap for China's further integration into the global economy.
Melding the power of the state with the power of capitalism, state-owned and state-controlled ent... more Melding the power of the state with the power of capitalism, state-owned and state-controlled enterprises continue to control the commanding heights of the Chinese economy even though market-oriented reforms have led to a rapid expansion of the private sector in China. This article reflects on how China's practice of state capitalism challenges the world trading system and how WTO law, as interpreted by WTO Panels and the WTO Appellate Body (AB), addresses these challenges. The article concludes that the WTO Agreement on Subsides and Countervailing Measures (SCM Agreement) has been interpreted in such a manner that many key features of China's state capitalism could easily be challenged by its trading partners in a WTO-consistent manner. This finding has profound implications for China's domestic economic reforms, especially China's ongoing reforms of its state-owned enterprises and commercial banks.
PSN: Foreign Direct Investment (International) (Topic), 2014
Due to the success of the ‘Go Global’ policy, in recent years there has been a dramatic increase ... more Due to the success of the ‘Go Global’ policy, in recent years there has been a dramatic increase in overseas direct investment made by Chinese state-owned enterprises (SOEs). However, Chinese SOEs’ overseas investment has been viewed with suspicion and several attempted acquisitions discontinued in the face of strong opposition from host countries. This article analyses the plausibility of some common fears about Chinese SOEs’ overseas direct investment and evaluates critically the regulatory responses of the US, Canada, Australia and the European Union motivated by such fears. The article argues that though some fears are legitimate, they are grossly exaggerated in view of the SOE reforms in China over the past three decades. The policy implications of this finding for both host countries and China’s ongoing SOE reforms are also explored.
When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the p... more When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the prospect that China’s World Trade Organization membership would boost international trade, encourage China’s restructuring toward a market economy, discipline the domestic legal system, and strengthen the rule of law in China. More recently, however, serious concerns have been raised regarding China’s record on the rule of law. The first National Security Strategy report issued by the Trump Administration in December 2017 claimed that China’s increased participation in the liberal international economic system had not effectuated China’s deeper engagement with, or respect for, the rule of law.
The purpose of this article is to take a critical look at the two contrasting narratives on the impact of the World Trade Organization on China’s rule of law construction over the past two decades. It concludes that, although the World Trade Organization has played a positive role in advancing the rule of law in China, such a role has long been exaggerated. Accordingly, we provide an account of why the World Trade Organization has failed to play a catalyst role in instituting the rule of law in China widely expected in the western world.
One category of voluntary approaches to environmental governance is ecolabels used to nudge consu... more One category of voluntary approaches to environmental governance is ecolabels used to nudge consumers towards purchasing environmentally friendly products. The purpose of this article is to critically review the trade law implications of voluntary ecolabels, with special reference to the EU ecolabel. For a long time, the lack of trade disputes related to the Agreement on Technical Barriers to Trade (TBT Agreement) before the World Trade Organization (WTO) Dispute Settlement Body rendered research on the legality of voluntary ecolabels in trade law unavoidably speculative. Consequently, the existing scholarship has failed to inform the environment law community clearly how trade law views voluntary ecolabels. This article aims to fill the gap in the literature by evaluating the consistency of the EU ecolabel with the TBT rules. The article concludes that it is highly unlikely that the EU ecolabel may be found inconsistent with the TBT Agreement. Nevertheless, there remains some legal risks.
The objective of this article is to critically review the case law on public morals exception in ... more The objective of this article is to critically review the case law on public morals exception in the multilateral trading system and argue against the World Trade Organization (WTO) Appellate Body's exceedingly deferential approach to the meaning and identification of public morals in international trade disputes. Admittedly, the WTO Appellate Body's judicial minimalism approach to trade dispute settlement has so far prevented it from making any broad claims about public morals exception. Nevertheless, I argue that the Appellate Body has already waded into treacherous waters. Going forward, the WTO Appellate Body must be cautious so as not to permit moral imperialism and put the delicately balanced multilateral trading system at grave risk. For this purpose, I propose a more nuanced approach to define public morals as well as manage its extraterritorial application in international trade law.
International standards have assumed special legal significance in the World Trade Organization (... more International standards have assumed special legal significance in the World Trade Organization (WTO) Agreement on Technical Barriers to Trade ('TBT Agreement'). This article conceptualizes international standards as global public goods and argues for applying global administrative law principles to vet international standards before they are afforded quasi-legislative status in the WTO law. We traced how the WTO Appellate Body has changed its original hands-off approach in EC – Sardines in 2002 to a more intrusive approach in US – Tuna II in 2012. We submit that the WTO Appellate Body's new approach to international standards marks a distinctive pathway for the development of global administrative law in producing global public goods. The compliance with global administrative law principles set out in the TBT Committee Decision in turn provides international standardizing bodies with additional legitimacy and accountability. However, contrary to popular opinion, we submit that adoption by consensus is not a necessary condition for a standard to be recognized as an international standard in the world trading system.
In a previous issue of this Journal, Julia Ya Qin published a critical analysis of the World Trad... more In a previous issue of this Journal, Julia Ya Qin published a critical analysis of the World Trade Organization Appellate Body (AB) Report on the China-Publications case. This comment questions her conclusion that the AB has “pushed the limits of global governance” in the China-Publications case.
In the World Trade Organization (WTO) jurisprudence, the Appellate Body (AB) has repeatedly affir... more In the World Trade Organization (WTO) jurisprudence, the Appellate Body (AB) has repeatedly affirmed that WTO Members have the prerogative right in setting any level of protection that they deem appropriate (ALOP). At the same time, WTO Agreements provide for disciplines that a WTO Member must respect when it selects regulatory measures to fulfill its ALOP. Thus, a WTO Member's autonomy in setting its ALOP, on the one hand, and the full force of other disciplines, on the other hand, are in a constant state of tension. Then, exactly how does a panel balance a Member's right of setting its ALOP with a myriad of other trade obligations? To what extent is this right respected in the WTO dispute settlement processes? This article argues that the case law has confirmed that a Member's obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) must be read in light of the Member's chosen ALOP, and that the AB has also demonstrated sensitivity and deference to a Member's ALOP under the SPS Agreement. The same conclusion, however, cannot be easily applied to Article XX of the General Agreement on Tariffs and Trade 1994 (GATT 1994). Indeed, the case law under Article XX has demonstrated inconsistencies as to when WTO Members' right to set their ALOP will be respected. I argue that such inconsistencies may be explained by a value-based, pragmatic approach adopted by the AB.
This article sets forth two arguments. First, to respect a WTO Member's national regulatory auton... more This article sets forth two arguments. First, to respect a WTO Member's national regulatory autonomy in the world trading system is essential to ensure the WTO's long term success in light of the WTO's institutional constraints, the WTO's underlying philosophy and the WTO's nature as an incomplete contract. Second, and contrary to many popular criticisms against the WTO's allegedly intrusive penetration to national regulatory autonomy, this article argues that these critics have failed to appreciate the recent WTO case law developments. Indeed, the recent WTO case law has shown that the WTO Appellate Body has quietly fine-tuned its previous jurisprudence and as a result, WTO Members enjoy a broader scope of regulatory autonomy than conventionally assumed.
Much ink has been splashed on the ideological, conceptual, and practical challenges that China’s ... more Much ink has been splashed on the ideological, conceptual, and practical challenges that China’s state capitalism has posed to global trade rules. There is a growing perception that the current international trade rules are neither conceptually coherent nor practically effective in tackling China’s state capitalism. This perception has not only led to the emergence of new trade rules in regional trade agreements, but also culminated in the US-China trade war, only further aggravated by the Covid-19 pandemic. This Article contributes to the debate of what trade rules may be needed to counteract China’s state capitalism by unpacking the black box of China’s state capitalism. Based on an analysis of the nature of China’s state capitalism, this Article provides a preliminary evaluation of current trade rules taken to counteract China’s state capitalism, in particular the new rules in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and explain why they are unli...
This article questions the consistency of the EU anti-dumping regulation with the WTO Anti-dumpin... more This article questions the consistency of the EU anti-dumping regulation with the WTO Anti-dumping Agreement. It argues that with the expiry of paragraph 15(a)(ii) on 11 December 2016, China’s WTO Accession Protocol may no longer provide the legal basis for the EU to set aside Chinese domestic prices in determining normal value of Chinese products. Moreover, given that the European Commission has consistently used costs that are not actual costs of Chinese producers in constructing normal value of Chinese products, the EU anti-dumping practice runs the risk of being inconsistent with WTO law since the WTO Anti-dumping Agreement does not allow for such flexibility when determining costs of production in the exporting country. Drawing on Jackson’s interface theory, this article further argues that the EU’s introduction of the new concept ‘significant market distortions’ to anti-dumping practices should be conceptualized as an effort to reconstitute alternative interface mechanisms whe...
The objective of this article is to critically review the case law on public morals exception in ... more The objective of this article is to critically review the case law on public morals exception in the multilateral trading system and argue against the World Trade Organization (WTO) Appellate Body’s exceedingly deferential approach to the meaning and identification of public morals in international trade disputes. Admittedly, the WTO Appellate Body’s judicial minimalism approach to trade dispute settlement has so far prevented it from making any broad claims about public morals exception. Nevertheless, I argue that the Appellate Body has already waded into treacherous waters. Going forward, the WTO Appellate Body must be cautious so as not to permit moral imperialism and put the delicately balanced multilateral trading system at grave risk. For this purpose, I propose a more nuanced approach to define public morals as well as manage its extraterritorial application in international trade law.
Law & Society: International & Comparative Law eJournal, 2016
International standards have assumed special legal significance in the World Trade Organization (... more International standards have assumed special legal significance in the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (‘TBT Agreement’). This article conceptualizes international standards as global public goods and argues for applying global administrative law principles to vet international standards before they are afforded quasi-legislative status in the WTO law. We traced how the WTO Appellate Body has changed its original hands-off approach in EC – Sardines in 2002 to a more intrusive approach in US – Tuna II in 2012. We submit that the WTO Appellate Body’s new approach to international standards marks a distinctive pathway for the development of global administrative law in producing global public goods.The compliance with global administrative law principles set out in the TBT Committee Decision in turn provides international standardizing bodies with additional legitimacy and accountability. However, contrary to popular opinion, we submit that adopt...
When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the p... more When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the prospect that China’s World Trade Organization membership would boost international trade, encourage China’s restructuring toward a market economy, discipline the domestic legal system, and strengthen the rule of law in China. More recently, however, serious concerns have been raised regarding China’s record on the rule of law. The first National Security Strategy report issued by the Trump Administration in December 2017 claimed that China’s increased participation in the liberal international economic system had not effectuated China’s deeper engagement with, or respect for, the rule of law. The purpose of this article is to take a critical look at the two contrasting narratives on the impact of the World Trade Organization on China’s rule of law construction over the past two decades. It concludes that, although the World Trade Organization has played a positive role in advancing the r...
One category of voluntary approaches to environmental governance is ecolabels used to nudge consu... more One category of voluntary approaches to environmental governance is ecolabels used to nudge consumers towards purchasing environmentally friendly products. The purpose of this article is to critically review the trade law implications of voluntary ecolabels, with special reference to the EU Ecolabel. For a long time, the lack of trade disputes related to the Agreement on Technical Barriers to Trade (TBT Agreement) before the World Trade Organization Dispute Settlement Body rendered research on the legality of voluntary ecolabels in trade law unavoidably speculative. Consequently, the existing scholarship has failed to inform the environment law community clearly how trade law views voluntary ecolabels. This article aims to fill the gap in the literature by evaluating the consistency of the EU Ecolabel with the TBT rules. The article concludes that it is highly unlikely that the EU Ecolabel may be found inconsistent with the TBT Agreement. Nevertheless, there remains some legal risks.
The emergence of mega-regional trade agreements like the Trans-Pacific Partnership (TPP) and the ... more The emergence of mega-regional trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) threatens to fragment global trade governance in fundamental ways. An important question, yet so far under-explored, is how the rising powers currently being excluded from the mega-regionals, such as China, view this new development in global economic governance. This article intends to fill this gap in the literature from a Chinese perspective. Specifically, this article addresses the following questions: why has China changed its initial suspicious attitude to a more neutral stance toward the TPP recently? What are the short-term and long-term effects of the TPP on China's economic growth and geo-political influence? How will China deal with a myriad of challenges posed by the TPP going forward, be it in or outside the TPP? After the analysis of a range of relevant political, economic and legal factors, I submit that the Chinese government has adopted what I call a 'tripartite strategy' toward the TPP. What remains to be seen is whether this tripartite strategy provides the best roadmap for China's further integration into the global economy.
Melding the power of the state with the power of capitalism, state-owned and state-controlled ent... more Melding the power of the state with the power of capitalism, state-owned and state-controlled enterprises continue to control the commanding heights of the Chinese economy even though market-oriented reforms have led to a rapid expansion of the private sector in China. This article reflects on how China's practice of state capitalism challenges the world trading system and how WTO law, as interpreted by WTO Panels and the WTO Appellate Body (AB), addresses these challenges. The article concludes that the WTO Agreement on Subsides and Countervailing Measures (SCM Agreement) has been interpreted in such a manner that many key features of China's state capitalism could easily be challenged by its trading partners in a WTO-consistent manner. This finding has profound implications for China's domestic economic reforms, especially China's ongoing reforms of its state-owned enterprises and commercial banks.
PSN: Foreign Direct Investment (International) (Topic), 2014
Due to the success of the ‘Go Global’ policy, in recent years there has been a dramatic increase ... more Due to the success of the ‘Go Global’ policy, in recent years there has been a dramatic increase in overseas direct investment made by Chinese state-owned enterprises (SOEs). However, Chinese SOEs’ overseas investment has been viewed with suspicion and several attempted acquisitions discontinued in the face of strong opposition from host countries. This article analyses the plausibility of some common fears about Chinese SOEs’ overseas direct investment and evaluates critically the regulatory responses of the US, Canada, Australia and the European Union motivated by such fears. The article argues that though some fears are legitimate, they are grossly exaggerated in view of the SOE reforms in China over the past three decades. The policy implications of this finding for both host countries and China’s ongoing SOE reforms are also explored.
When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the p... more When China acceded to the World Trade Organization in 2001, pundits were enthusiastic about the prospect that China’s World Trade Organization membership would boost international trade, encourage China’s restructuring toward a market economy, discipline the domestic legal system, and strengthen the rule of law in China. More recently, however, serious concerns have been raised regarding China’s record on the rule of law. The first National Security Strategy report issued by the Trump Administration in December 2017 claimed that China’s increased participation in the liberal international economic system had not effectuated China’s deeper engagement with, or respect for, the rule of law.
The purpose of this article is to take a critical look at the two contrasting narratives on the impact of the World Trade Organization on China’s rule of law construction over the past two decades. It concludes that, although the World Trade Organization has played a positive role in advancing the rule of law in China, such a role has long been exaggerated. Accordingly, we provide an account of why the World Trade Organization has failed to play a catalyst role in instituting the rule of law in China widely expected in the western world.
One category of voluntary approaches to environmental governance is ecolabels used to nudge consu... more One category of voluntary approaches to environmental governance is ecolabels used to nudge consumers towards purchasing environmentally friendly products. The purpose of this article is to critically review the trade law implications of voluntary ecolabels, with special reference to the EU ecolabel. For a long time, the lack of trade disputes related to the Agreement on Technical Barriers to Trade (TBT Agreement) before the World Trade Organization (WTO) Dispute Settlement Body rendered research on the legality of voluntary ecolabels in trade law unavoidably speculative. Consequently, the existing scholarship has failed to inform the environment law community clearly how trade law views voluntary ecolabels. This article aims to fill the gap in the literature by evaluating the consistency of the EU ecolabel with the TBT rules. The article concludes that it is highly unlikely that the EU ecolabel may be found inconsistent with the TBT Agreement. Nevertheless, there remains some legal risks.
The objective of this article is to critically review the case law on public morals exception in ... more The objective of this article is to critically review the case law on public morals exception in the multilateral trading system and argue against the World Trade Organization (WTO) Appellate Body's exceedingly deferential approach to the meaning and identification of public morals in international trade disputes. Admittedly, the WTO Appellate Body's judicial minimalism approach to trade dispute settlement has so far prevented it from making any broad claims about public morals exception. Nevertheless, I argue that the Appellate Body has already waded into treacherous waters. Going forward, the WTO Appellate Body must be cautious so as not to permit moral imperialism and put the delicately balanced multilateral trading system at grave risk. For this purpose, I propose a more nuanced approach to define public morals as well as manage its extraterritorial application in international trade law.
International standards have assumed special legal significance in the World Trade Organization (... more International standards have assumed special legal significance in the World Trade Organization (WTO) Agreement on Technical Barriers to Trade ('TBT Agreement'). This article conceptualizes international standards as global public goods and argues for applying global administrative law principles to vet international standards before they are afforded quasi-legislative status in the WTO law. We traced how the WTO Appellate Body has changed its original hands-off approach in EC – Sardines in 2002 to a more intrusive approach in US – Tuna II in 2012. We submit that the WTO Appellate Body's new approach to international standards marks a distinctive pathway for the development of global administrative law in producing global public goods. The compliance with global administrative law principles set out in the TBT Committee Decision in turn provides international standardizing bodies with additional legitimacy and accountability. However, contrary to popular opinion, we submit that adoption by consensus is not a necessary condition for a standard to be recognized as an international standard in the world trading system.
China’s approach to ISDS reform is widely perceived as undecided and ambiguous. This paper provid... more China’s approach to ISDS reform is widely perceived as undecided and ambiguous. This paper provides the first detailed analysis of China’s submission to the UNITRAL Working Group III and situates China’s approach in the context of global dialogue of ISDS reform and competing reform proposals. The paper shows that China’s open, flexible, and evolving approach to ISDS reform could be better understood by a systemic evaluation of the pertinent factors which have contributed to its formation. A sophisticated understanding of China’s position on ISDS reform also provides a new angle to appreciate China’s approach to shape global economic norms. Moreover, this paper argues that it is unlikely for China to sign up to the EU’s investment court system proposal in the EU-China Comprehensive Agreement on Investment in the short term. However, the EU’s suggestion that the envisaged multilateral investment court may adopt an ‘open architecture’ could potentially enhance its appeal to China.
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Papers by Ming Du
The purpose of this article is to take a critical look at the two contrasting narratives on the impact of the World Trade Organization on China’s rule of law construction over the past two decades. It concludes that, although the World Trade Organization has played a positive role in advancing the rule of law in China, such a role has long been exaggerated. Accordingly, we provide an account of why the World Trade Organization has failed to play a catalyst role in instituting the rule of law in China widely expected in the western world.
The purpose of this article is to take a critical look at the two contrasting narratives on the impact of the World Trade Organization on China’s rule of law construction over the past two decades. It concludes that, although the World Trade Organization has played a positive role in advancing the rule of law in China, such a role has long been exaggerated. Accordingly, we provide an account of why the World Trade Organization has failed to play a catalyst role in instituting the rule of law in China widely expected in the western world.