General Issue
Vol. II, No. 2
(Fall '10)

This article evaluates the evolving jurisprudence on the precautionary approach (Article 5.7 of the SPS Agreement) in World Trade Organization dispute settlement. While the jurisprudence demonstrates that panels and the Appellate Body have balanced a Member’s precautionary autonomy with the WTO obligations of transparency and nondiscrimination, this has not made for fluid jurisprudence and some of the interpretations taken in earlier disputes have not meshed well with the facts or circumstances of subsequent disputes. It is the view of the authors, however, that the interpretive framework developed by the Appellate Body in US/Canada–Continued Suspension could be applied to all circumstances arising from Article 5.7, providing for greater deference to regulatory authorities while at the same time also providing clear boundaries to the scope of Article 5.7. The Appellate Body decision does not answer all remaining questions regarding the scope, coverage and applicability of Article 5.7 or of the SPS Agreement more generally, but it is a step forward in the evolution of decision-making and one that will have continued prominence and importance in the years to come as panels are established in the next generation of SPS Agreement-related disputes.

This article analyzes European Union-China trade relations in the context of the current negotiations for a new comprehensive framework agreement between the European Union (EU) and the People’s Republic of China. China is a strong economic power with increasingly sophisticated production in its coastal regions and is attempting to establish itself as a gravity center by concluding many bilateral free-trade agreements in the region. Although China has a strong hold in the Far East, there may be specific policy areas in which China’s influence ends up being global.

The article explains the steps taken for negotiating a new comprehensive framework agreement between China and the European Union, examines trade relations between the entities as well as the bilateral trade relations from a Chinese perspective. It also seeks to analyze the various ways to improve the currently difficult EU-China trade relations. The article concludes that dealing with China was one of the main arguments in favour of ratifying the Treaty of Lisbon because it provides for a permanent president of the European Council and a single foreign affairs post for the entire EU, which facilitates the EU’s coherence in its external affairs. Moreover, the article concludes that the European Commission should negotiate the prospective Partnership and Cooperation Agreement between the EU and China more constructively, without patronizing China, and instead accept it as an equal player in the current multipolar framework of global economic governance.

The World Trade Organization’s (WTO) Doha Development Round of negotiations has not yet produced the desired greater liberalization of trade in services. Considering the importance of further liberalization, at least among the willing WTO Members, this article proposes the establishment of a preferential agreement outside the Doha Round; an Economic Integration Agreement (EIA). If successfully negotiated, such an agreement could attract other Members to join, and have the potential of becoming a multilateral agreement such as the WTO agreements on telecommunications and financial services, or a plurilateral agreement such as the Information Technology Agreement.

Currently, EIAs are effectively the only exception to the Most-Favored-Nation (MFN) treatment principle practicable for broader agreements, in addition to the generally available exceptions. EIAs may not only revive negotiations among interested countries, but also offer a sensible way to account for different levels of Members’ technological and infrastructural development. For example, India may find an EIA with the U.S., EU, or OECD, whether concluded cumulatively or individually, accelerating its development. The same could be said in the case of Brazil. As a method of distancing service negotiations from negotiations on agriculture and non-agriculture market access, an EIA could enable closer cooperation between the U.S and EU. An EIA could also induce trade among the members of the Organization for Economic Co-operation and Development.

As an exception to the MFN principle susceptible to abuse on one hand, and as an opportunity to expand liberalization, Article V of the General Agreement on Trade in Services (Economic Integration), as interpreted, balances two main requirements for a valid EIA. This article analyzes the scope and interaction of the two main conditions for EIA’s creation: “substantial sectoral coverage” and “elimination of substantially all discrimination”. By exploring the meaning of Article V, its negotiating history, the relevant WTO Panel decisions, and practical application of EIAs, this article assesses the minimal requirements a valid EIA should satisfy.

In the past, EIAs have been concluded within a Free Trade Agreement (FTA) framework, but nothing prevents an EIA from being concluded as a stand-alone agreement, without relation to trade in goods or other trade. Once EIA partners agree on terms of their EIA or an enlargement of existing FTA, they should notify the agreement to the Council for Trade in Services. The Council will determine the EIA’s consistency with Article V. The EIA will likely satisfy those requirements if it covers most of each party’s major service sectors.

​This comment addresses the controversy over the ban of genetically modified organisms (“GMOs”) in the international trade market. Currently, there are six countries that ban Monsanto’s GMO maize MON810. Specifically, this comment questions the validity of Germany’s ban with regards to the treaties of the World Trade Organization (“WTO”) and directives/regulations of the European Union. This comment concludes that the scientific evidence cited by Germany does not meet treaty safeguard provisions in order to validate the ban of GMO maize MON810 within its borders. In light of this conclusion, this comment recommends that the United States, on behalf of Monsanto, should bring a claim against Germany regarding the ban via the WTO’s dispute settlement procedures. Additionally, in order to protect against future illegal bans based upon insufficient scientific evidence, the WTO should establish an independent scientific organization to analyze the environmental safety of GMOs. Finally, this comment recommends that as a prophylactic to illegal bans, the WTO should strengthen its dispute settlement procedures by altering its dispute resolution timeline and increase the costs to violators.

On August 19, 2009, the prominent Swiss bank UBS entered into a settlement agreement with the United States Internal Revenue Service (IRS) in order to avoid legal action levied against it by the IRS. The crucial and controversial provisions of this agreement require UBS to disclose the confidential identification information of its American clients to allow the IRS to ascertain whether these Americans have committed tax fraud. The global banking and financial communities have taken enormous notice of this settlement agreement. The infamous banking secrecy policies of Switzerland have contributed to the incredibly lucrative banking sector of the Swiss economy. However, the settlement and subsequent changes in Swiss law could potentially and irrevocably harm both the country’s banking sector as well as its international standing. This note seeks to identify the possible international law implications of the UBS/IRS settlement agreement and how this decision will affect U.S. relations with the Swiss. Ultimately, the author’s intent is to contribute to the greater body of knowledge and legal analysis surrounding the outcome of the clash of two nations’ laws.