General Issue
Vol. IX, No. 1
(Summer '17)

After a long impasse, Mercosur and the European Union are once again negotiating to reach a Free Trade Agreement. The benefits from such a trade liberalization would be significant since these are essentially complementary economic regions. An agreement would also end decades of costly trade diversion effects and few of these are quantified in this paper. But, trade is only one of the important issues in these negotiations. The biggest Mercosur countries are making efforts towards leaving behind a decade long experiment with populism that violated several World Trade Organisation rules while Europe is increasingly being threatened by right wing populism that is outspoken in favor of inward-looking economic and social policies. A Mercosur-EU would create a significant economic region with enormous potential for trade creation; such an agreement would also serve to strengthen western trade institutions and challenge the populist threats that is hanging over both of these regions.

The U.S. President Donald J. Trump decided to withdraw from the Trans-Pacific Partnership (TPP) on January 23, 2017, thus ending the collective TPP-12 enterprise that had begun more than eight years ago. However, this did not put an end to the impact that the TPP would have on ongoing and future trade negotiations. The TPP is already being used as a template in other trade and investment agreements. This note will show the same by analysing the realms of investment law and patent standards post-TPP. This phenomenon gives developing countries a direction into how some future negotiations of the developed world will be framed. In turn, this hindsight should allow them to either support or collectively oppose certain standards.

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The proliferation of preferential trade agreements (PTAs) has already fragmented the World Trade Organisation (WTO) law. Of late, there has been a plethora of scholarly discussions on issues such as conflict of jurisdiction between PTAs and WTO dispute settlement. Scholars have been wary of the consequences of this proliferation, often highlighting the issues caused by the preferential rules such as the increasing uncertainty in law, incoherent jurisprudence and splintering of the multilateral trading system. Several countries have apparently been attempting to avoid the conflict by cross-referencing to the WTO treaty provisions. Incorporation or affirmation of rights and obligations have been the commonly used drafting techniques to avoid this conflict. This article poses the question whether these drafting techniques which are ostensibly carried out to achieve congruence of PTA regimes with the WTO legal regime are, in themselves, spawning more conflict.  The incorporation or affirmation provisions can have unintended consequences and can lead to complications unless carefully thought through. The article examines the key differences between incorporation and affirmation and their treatment under public international law. It also undertakes an assessment of these issues under customary international law, especially the rules on treaty interpretation. While examining these issues, the article also highlights the provisions of contemporary treaties which might serve as suitable templates for States desiring to refer to their WTO commitments in PTAs.