• Journal of International Trade Law and Policy

Emerald Group Publishing Limited
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Latest documents

  • E-commerce mercantilism-practices and causes

    Purpose This paper aims to highlight in particular one commercially influential but subtle constituent of China’s mercantilist stratagem - asymmetrical internet access. The wider aim of the paper is to provide a solid basis of real-world facts and knowledge to the e-commerce discussions at the World Trade Organization and the ongoing plurilateral e-commerce negotiations. Design/methodology/approach This paper uses an empirical approach to reflect the general experiences of consumers connecting from China to e-commerce platform websites in other countries and vice versa consumers connecting from other countries to China’s e-commerce platform. Findings The empirical data show that Chinese potential customers trying to connect to the websites of foreign internet retailers in 17 other sample countries are faced with prohibitively long waiting times. In contrast, the average waiting time that it takes for customers in those other 17 countries to link up to China’s major internet retail platforms is much shorter. Practical implications The hard evidence presented here serves to strengthen the arguments that such internet censorship is used by China to establish unfair e-commerce advantage. This paper further argues that the General Agreement on Trade in Services is restrained from providing systemic solutions to the digital mercantilism problem. It is essential, therefore, that the ongoing plurilateral e-commerce negotiations address this issue. Originality/value This paper is the first to publish detailed results of a systematic survey designed to analyze the impact of asymmetrical internet access in China. It is also the first to examine the extent and effect of differing internet connection speeds in the context of international trade. The outcome of the survey provides a factual base for future rule-making at the multilateral level.

  • A comparative study of the CISG and the North Korean contract law as to formation of a contract

    Purpose North Korea joined the United Nations Convention on Contracts for the International Sale of Goods (CISG) as a 90th member on March 27, 2019, which will necessitate the understanding of North Korean laws, in particular, the contract law for sale. This paper aims to compare the CISG and the North Korean contract law as to the formation of a contract focusing on form and writing requirement, offer and acceptance. Design/methodology/approach This paper analyzes the provisions of the North Korean Civil Code and the CISG and reviews the previous research studies concerning the formation of a contract. Findings The CISG and the North Korean Civil Code are very similar in many aspects as to the formation of a contract. However, there are some discrepancies as to the formation of a contract to which the parties need to pay attention in choosing the governing law. Practical implications The parties need to pay attention to the differences concerning the formation of a contract between the North Korean Civil Code and the CISG in concluding a contract for sale with North Korea. Originality/value This paper will be the first research work, to the best of the author’s knowledge, on the comparison of the CISG and the North Korean contract law as to the formation of a contract.

  • Global auto industry and product standards. A critical review of India’s economic and regulatory experience

    Purpose This paper aims to analyze whether the domestic policy reforms in India would suffice, or there is a need to conform to stricter international standards as well. The paper is arranged along the following lines. First, the paper offers a brief review of the cooperation in the field of harmonization of vehicle regulations which is provided by the so-called WP.29 Forum. Second, the United Nations Economic Commission for Europe (UNECE) standards and their membership along with Indian participation in the forum are presented. Third, reforms in India through the “Make in India” (MII) initiative and its trade in the auto-component segment are analyzed. Fourth, the possible non-tariff barriers (NTBs) on imports of auto-components in select partner countries is computed and presented. Fifth, the penetration pattern of partner countries in India’s automotive sector export value chain is analyzed. Finally, based on the observations, key policy conclusions are drawn both from global and Indian perspectives. Design/methodology/approach This paper blends expertise in law and economics and enables readers to have a finer understanding of the automotive sector which is one of the most internationalized product groups in world trade, characterized by not only cross-border movement of final products, but also of intermediate products like auto-parts and components as well as major global investment and relocation decisions. This paper focuses on India for four crucial reasons, which makes India both a key player (and potential disruptor) at global level and the rather complex approach chosen by the country vis-a-vis many regulations (including UNECE and WTO), reflecting its tendency to rely on domestic consolidation through measures such as the 2014 MII initiative. Findings The data analysis in the current paper indicates that after conforming to the UNECE 1998 standard, India’s relative trade with these countries has increased both in terms of auto-components and automobile products. Moreover, the value contribution from these partner countries in India’s exports is rising. On the other hand, the relative share of the UNECE 1958 countries in India’s trade basket has declined and a mixed trend is noticed for the common contracting parties (CPs). In addition, the share of the countries without accession to any of the UNECE agreements in India’s trade has shown an upward trend. The observation indicates that the divergence in automotive product standards might crucially influence India’s trade flows. It seems that in the short run, an orientation for exporting to UNECE 1998 partners and non-members emerges as a dominant strategy, underlining a specialization in medium-quality segment. Nevertheless, the long-term robustness of such a move deserves closer analysis, particularly by focusing on whether India may need to join the UNECE 1958 agreement to sustain its export growth. Before joining UNECE 1998, the sector has enjoyed protection through high tariff barriers. Given the differing perspective on opening-up, automobile sector earlier emerged as an obstacle in conclusion of EU-India Bilateral Trade and Investment Agreement (BTIA), which is being negotiated since 2007. However, after entry into an regional trade agreement (RTA), tariff preference in itself may not provide a country the requisite market access. The recent standard-setting exercises in ASEAN, a group with which India is deepening trade integration since 2010, may be considered as a case in point. Research limitations/implications The analysis so far indicates that absence of participation in UNECE 1958 standard may restrict future options for India. Presently, Indian vehicle exports are reaching UNECE 1998 member countries (e.g., Ford India sending Ecosport to USA). It is also directed towards African and Latin American countries, presently not part of any agreement. However, the ASEAN countries, currently partnering India through free trade agreement (FTA), are increasingly moving towards UNECE 1958 standards. India’s sectoral trade surplus with ASEAN countries over 2009-2013 to 2014-2018 has declined from US$548.44mn to US$529.53mn, respectively. The potential challenges in reaching ASEAN and other UNECE 1958 member countries, in turn, may influence the relocation decisions of global auto majors in India, defeating the core purpose of MII initiative. Practical implications Given the scenario, a number of policy choices for India emerge. First, joining UNECE 1958 may not be a short-run option for India, but after evaluating the evolving trade pattern, in the long run, the country may consider adopting certain core 1958 standards, in line with its economic interests. Such a move may facilitate greater export flows from India to UNECE 1958 countries. The experience of Indonesia and Vietnam, who have conformed to select UNECE 1958 standards in spite of not being formally part of any agreement, deserves mention in this regard. Second, it is observed that India’s trade balance (TB) is not improving for several Regional Comprehensive Economic Partnership (RCEP) member countries, in spite of obtaining tariff preferences through an existing trade bloc. Part of the poor performance has been explained by Indian exporters often using the most favoured nation route rather than the preferential route, to avoid the associated compliance-related complexities. The standards and mutual recognition agreements (MRAs) conformance provisions in ASEAN-India FTA are also found to be weaker vis-à-vis the comparable provisions for other ASEAN-centric bilateral RTAs with other RCEP members. This underlines the need for both rules of origin (ROO) reforms and agreement on MRAs, which may enhance the trade potential in general and in automotive sector in particular. In the short run, India should therefore attempt to enhance exports to the UNECE 1998 members and CPs, given the commonality in standards. However, in the long run, there is a need to explore harmonization with certain core 1958 standards, to promote exports in general and even within its RTAs in particular. Originality/value The automotive sector is one of the most internationalized product groups in world trade. It is known that harmonization of product standards with partner countries can facilitate bilateral trade flows. Presently, three agreements exist for harmonization of automotive standards relating to passenger and vehicle safety under the aegis of UNECE - UNECE 1958, UNECE 1997 and UNECE 1998. Through a series of reforms and launch of the MII initiative in 2014, India has deepened its presence in world automotive sector trade and aspires to play a bigger role in coming days. Moreover, India is a WTO member and has joined the UNECE 1998 standard in 2006, which means that several important conventions regulate and bind the country. The current paper intends to analyze whether the domestic policy reforms in India would suffice in promoting the exports from this sector, or there is a need to conform to stricter international standards. The data analysis reveals that India’s relative trade orientation is deepening towards the UNECE 1998 members and countries not part of any UNECE agreements. On the other hand, the relative trade share of the UNECE 1958 countries in India’s trade basket has declined and a mixed trend is noticed for the common CPs. The analysis indicates that the divergence in automotive product standards might crucially influence India’s trade flows in general and participation in international production networks in particular. The paper argues that in the long run, India needs to consider adherence to certain UNECE 1958 standards as well as speeding up the pending domestic reforms.

  • Are US antidumping cases being crowded out by other forms of protectionism?

    Purpose The issue of substitutability between various modes of import protection has been studied by economists in various ways. Since President Donald Trump came into office and soon started imposing tariffs, the need by US firms to file antidumping (AD) cases would seem to have been reduced. This study aims to examine whether such a reduction in AD cases has occurred. Design/methodology/approach Quarterly US AD filings via a negative binomial regression analysis are explained. Patterns based on data from 1995 through 2016 are obtained first and then predict US AD petitions for 2017 and 2018. Findings The authors reject a hypothesis of substitution away from AD in the Trump era of general protectionism but do find some support for the notion that protection moves downstream, with greater than predicted AD filings in downstream metals sectors. Originality/value This is the first study to examine the possibility of trade policy substitutability in the Trump era.

  • One Belt One Road: will it increase the gravity between China and Eurasia

    Purpose Globalisation has remained a subjective term as the magnitude unfolded. Every new decade witnesses new opportunities for global integration of the economies. One among such initiatives, it is argued, is the One Belt One Road initiative of the People’s Republic of China. It is assumed to be beneficial for the world and at least for the region, if not to say more. The world has witnessed efforts and trends of protectionism as well, but China comes up with new vigour. One Belt One Road has entered into consistent talks and deliberations at the world level. It is therefore imperative to identify the emerging linkages between the participant countries in One Belt One Road. This study aims to take up the task of enquiring about the effect of One Belt One Road on the gravity between China and the nations of Eurasia. This study looks for the realisation of the expected economic ties and internationalisation emerging from One Belt One Road and the evidence for the same. This will be identified in the present study. The paper also attempts to theorise a model for One Belt One Road. Design/methodology/approach This study takes up the task of enquiring about the effect of One Belt One Road on the gravity between China and the nations of Eurasia. The hypothesised economic ties and internationalisation will be a reality or not. And what are the evidences for the same. This will be identified in the proposed study. An attempt to theorise the model for One Belt One Road is also taken. Findings It is perceived that the mega project would fill the wedge between China and Eurasia and convergence will follow with the start of the One Belt One Road. Originality/value The emergence of China in the global world order as the initiator of mega deals and projects and its dominion in every realm of economic activity is a topic of scrutiny for the entire world. In this context, the One Belt One Road initiative offers huge potential for exploration. As the project is in its early stages of planning and execution, its prospects of tying entire Europe and Russia with China through two of the revived ancient routes are essential to the entire world.

  • Paradigm shift; the emergence of arbitral forum shopping in CPEC investment disputes

    Purpose The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems in an evolutionary phase, where the country is struggling hard to adopt the best practice of dispute resolution through forum shopping clauses. This struggle is even more inflated with huge Chinese investment through China Pakistan economic corridor (CPEC) projects in Pakistan, which come alongside with commercial investment disputes. For this purpose, the current treaty or contract-based system between China and Pakistan and litigation based domestic civil court structure look obsolete, hence, appear to require reinstatement of forum shopping clauses under concerned treaties or contracts for CPEC investment-related issues. Design/methodology/approach The authors choose a legal research method. The research design is a comparative analysis between CPEC contracts and dispute resolution mechanism between China and Pakistan and also the domestic civil court’s litigation system. This analysis selected by the authors due to inefficient bilateral investment arrangements and efficient resolution of future commercial disputes in CPEC. While the international arbitration system is included in the assessment were particular in the time and space context. The comparison comprises on dispute resolution clauses in free trade agreement (FTA) and bilateral investment treaties (BIT) between China and Pakistan and the system of resolving disputes by CPEC clauses. Findings The authors finds that in the absence of CPEC forum shopping clause under dispute resolution system, Pakistan is highly at risk to lose foreign investors, and therefore, set back the goal of long term economic sustainability in the region. However, China has already made its investment policies safer with establishing three international commercial courts (also referred to as Belt and Road courts), one in Xi’an for the land-based Silk Road Economic Belt, one in Shenzhen for the Maritime Silk Road and one in Beijing that will serve as the headquarters. These courts will be offering litigation, arbitration and mediation services. According to one view, China aims to have all belt and road initiative (BRI) disputes resolved by these courts. This makes Pakistan position more awkward and needs proactive measures, as CPEC investment is based on Pakistan foreign direct investment policies and legal structure. Therefore, it will be complicated and less favourable for Pakistan to deal with such cases under Chinese Courts. Originality/value The paper’s primary contribution is finding that comprehensive analysis of alternative dispute resolution mechanism between China and Pakistan over CPEC investment is inevitable. A socio-legal research combine with an examination of Singapore International Commercial Court functions and mechanism and CPEC plans further contributes to ascertain the best model of the settlement of commercial disputes under investments in Pakistan. This research paper anticipates future economic and legal problems, which Pakistan may encounter.

  • US–China trade war and the WTO dispute settlement mechanism

    Purpose The paper is prompted by the US-China trade war and its implications for the sustenance of the multilateral trading system. The two rivals resorted to “self-help” without recourse to the World Trade Organization (WTO) dispute settlement system, flouting the WTO as an adjudicator in trade disputes. This paper aims to analyze the drawbacks in the settlement system and examines the urgent need for a retroactive remedy. Design/methodology/approach This paper adopts desk-review and jurisprudential analysis of the relevant rulings of the WTO dispute settlement body. Using desk-review, primary sources such as the relevant domestic legislations invoked by the USA and China to trigger the trade war were discussed and critically analyzed. Findings This paper finds that the unilateral and protectionist actions that characterize the trade war can be linked to the loss of confidence in WTO remedies to redress members’ retroactive economic losses. This finding is useful in arguing for the incorporation of a retrospective monetary remedy to forestall the reoccurrence of a similar trade war and save the WTO from being dysfunctional. Originality/value Although, whether there should be retroactive remedies in the settlement system has been long debated, this paper makes a significant contribution by highlighting why the drawbacks in the settlement system have become so prominent in the context of this trade war. This paper strengthens the urgent need for WTO dispute settlement reform to prevent a reoccurrence of another global distortion of trade.

  • Competition law enforcement in Hong Kong SAR and in Ireland: similar and atypical

 This paper aims to understand the emergence, operation and evolution of judge-centred models for the enforcement of competition law in Ireland and in Hong Kong SAR. The public enforcement model in Hong Kong chimes with the Irish regime where competence to adjudicate on competition law violations and to impose sanctions is intentionally reserved exclusively to judges. This design choice renders the Irish and Hong Kong regimes both similar to each other and atypical on the global stage, where in many jurisdictions an administrative competition agency investigates suspected infringements, makes determinations of infringements and may penalise infringers.
 This paper starts by detailing the current competition law architecture in each jurisdiction. Then, it examines closely the discourse (expressed in consultations, experts’ reports and Parliamentary documents) in the lengthy period preceding their introduction. This approach aims, firstly, to understand why judicial models were chosen over more familiar administrative ones and, secondly, to unearth any similar concerns which had a bearing on the choice of atypical design. Next, it analyses some implications of the judicial model in operation for, firstly, parties; secondly, the administrative competition agencies; and, thirdly, the evolution of competition law.
 It finds the existence of similar concerns surrounding due process/separation of power arose in each jurisdiction. Other similar strands include a sluggish political appetite which delayed reform. Each jurisdiction actively sought to inform itself about international experience but did not feel obliged to copy the enforcement dimension even where substantive prohibitions were persuasive.
 Research limitations/implications
 It shines a light on the independent response by two small Common Law jurisdictions, which does not converge with popular administrative international models of competition law enforcement.
 Practical implications
 It is hoped that the decades-long experience in Ireland may interest those involved in Hong Kong competition law, which is at a comparatively fledgling stage of development.
 This is an original research and appears to be the first paper exploring the atypical approaches taken in Hong Kong SAR and Ireland to designing locally suited regimes for the enforcement of competition law.

  • Brexit and the EU–UK free trade agreement: dos and don’ts when drafting rules of origin

 The purpose of this paper is to highlight the pros and cons of different models of the European Union (EU)-style Rules of Origin (RoO) that could be chosen by negotiators for a future UK-EU Free Trade Agreement (FTA). It will also underline the impact that any choice would have on economic operators and certain criteria that should be evaluated before taking any decisions on the adoption of RoO.
 The paper will describe three different RoO models that could be chosen by negotiators. For each of them, it analyses the pros and cons and the impact on economic operators.
 The choice of a RoO would have an impact on future EU-UK trade relations. It will affect the utilization rate of the FTA as well as investment (and divestment) corporate strategies in the UK and EU.
 The paper introduces different criteria to evaluate the impact of RoO that should be taken into consideration by negotiators. It emphasizes that RoO should be simple, predictable, coherent, IT compatible and easily adaptable.

  • Advancing labour mobility in trade agreements. The lost opportunity in the Trans-Pacific Partnership

 Labour mobility is increasingly recognized as an important component of a globalized international trading system. This paper aims to examine the role of temporary entry commitments in international trade agreements toward facilitating global labour mobility.
 This paper traces three decades of temporary entry provisions in international trade agreements signed by the USA and Canada, beginning with their bilateral Canada-US Free Trade Agreement and culminating in the Trans-Pacific Partnership (TPP).
 The paper finds that while many countries have continued to liberalize their temporary entry commitments in various trade agreements, the USA has reversed course in the previous decade, hampering international progress. Meanwhile, Canada has pursued ever greater labour mobility provisions with most of its trading partners.
 Practical implications
 The unique roles played by the USA, Canada and other trading partners in advancing a coherent international labour mobility agenda are considered. To continue to advance labour mobility in trade agreements moving forward, policy alternatives to the “all” or “nothing” approaches pursued by Canada and the USA are suggested.
 To the author’s knowledge, this paper is the first to formally evaluate labour mobility in the TPP and the only paper to outline the evolution of temporary entry in the US vs Canadian trade agreements over three decades.

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