Abstract
This chapter uses existing tools of public choice theory to predict how governments would behave in the absence of the set of constraints and incentives provided by WTO obligations. It argues that any attempt to overcome protectionist behaviour would need to incorporate the interest of exporters and the interest of other constituents pursuing non-protectionist regulatory goals. It shows how the existing WTO rules and its dispute settlement mechanism have largely incorporated such diverse interests and that the key to doing so has been the incorporation of the principles of the Generalized Theory of Distortions and Welfare into WTO rules. It concludes that if the WTO breaks down completely, there will be a need to construct a new regime for international trade regulation which would require similar sets of rules to restrain protectionist behaviour and strike a balance between liberalizing trade and preserving policy space, and that it would be of critical importance that such rules incorporate the guidance provided by the Generalized Theory of Distortions and Welfare, just as well or even better than the existing WTO rules do.
Respectively, Principal of Williams Trade Law; and Senior Lecturer and Member of the Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre, Faculty of Law, UNSW Sydney.
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Notes
- 1.
We use government decision makers, government officials or politicians interchangeable in this chapter. This section is partly based on Zhou (2020), p. 9.
- 2.
The seminal work on public choice theory includes Downs (1957), Buchanan and Tullock (1962) and Olson (1965). These three pieces of work form the foundation of subsequent development of modern political economy theories. See, e.g., Baldwin (1982), pp. 263–286; Grossman and Helpman (1994), pp. 833–850; Grossman and Helpman (1995), pp. 675–708.
- 3.
There have been some important empirical tests of particular models based on public choice methodology, including, for example, Koujianou Goldberg and Maggi (1999), pp. 1135–1155.
- 4.
The same can also happen when domestic producers respond to changes in the domestic market knowing their behaviour cannot be constrained by any increase in the volume of imports.
- 5.
Roessler (1993), pp. 53–62.
- 6.
See generally Abbott (1985), pp. 501–532.
- 7.
See Zhou (2020), p. 17.
- 8.
- 9.
- 10.
As Corden put it: “[by the theory of distortions and welfare] the link between the case for free trade and the case for laissez-faire has been broken.” See Corden (1997), p. 4.
- 11.
This section is partly based on Zhou (2020), pp. 19–21.
- 12.
Deardorff and Stern (1987), p. 39 (observing that “Trade policy is like doing acupuncture with a fork: no matter how carefully you insert one prong, the other is likely to do damage.”).
- 13.
See generally Bhagwati (1971).
- 14.
Corden (1997), pp. 33–44.
- 15.
- 16.
- 17.
Petersmann (1993), pp. 47–48.
- 18.
- 19.
It is beyond the scope of this chapter to identify and explain all of the elements of the various WTO agreements which allow for Members to choose objectives but limit the choice of policy instrument.
- 20.
Appellate Body Report, Australia – Measures Affecting Importation of Salmon, 199-200, WTO Doc. WT/DS18/AB/R (adopted Nov. 6, 1998).
- 21.
Disciplines on Domestic Regulation in the Accountancy Sector, Adopted by the Council for Trade in Services on 14 December 1998; S/L/64, 17 December 1998.
- 22.
WTO, Appellate Body, Farewell Speech of Appellate Body Member Peter Van den Bossche, (May 28, 2019), available at: https://www.wto.org/english/tratop_e/dispu_e/farwellspeech_peter_van_den_bossche_e.htm.
- 23.
Panel Report, China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China – Publications and Audiovisual Products), 7.713, WTO Doc. WT/DS363/R (adopted Jan. 19, 2010).
- 24.
Ibid., 7.824-911; Appellate Body Report, China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, 269-337, WTO Doc. WT/DS363/AB/R (adopted Jan. 19, 2010).
- 25.
For a detailed discussion of China’s implementation, see Zhou (2019), pp. 52–65.
- 26.
Delimatsis (2011), p. 287.
- 27.
Conconi and Pauwelyn (2011), p. 108.
- 28.
For more details of the EU regime, see Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seal Products), 2.1-7, 7.1, 7.7-56, WTO Doc. WT/DS400/R, WT/DS401/R (adopted June 18, 2014). The other two exceptions included the MRM exception relating to seal products obtained from seals hunted for the sustainable management of marine resources, and the Travellers exception which allowed travellers to bring seal products into the EU for personal/family use.
- 29.
Ibid., 7.290-319.
- 30.
Ibid., 7.618-651.
- 31.
Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seal Products), 5.8-70, 5.78-130, 5.184-290., WTO Doc. WT/DS400/AB/R, WT/DS401/AB/R (adopted June 18, 2014).
- 32.
Regulation (EU) 2015/1775 amending Regulation (EC) No 1007/2009 on trade in seal products and repealing Commission Regulation (EU) No 737/2010, OJ L 262/2 (October 6, 2015).
- 33.
Howse et al. (2014).
- 34.
Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seal Products), WTO Doc. WT/DS400/R, WT/DS401/R (adopted June 18, 2014) 7.441-461.
- 35.
Mavroidis (2015), pp. 391–392.
- 36.
Regan (2014), p. 321.
- 37.
Howse et al. (2014).
- 38.
See generally European Commission, International Cooperation and Development: Greenland, available at: https://ec.europa.eu/europeaid/countries/greenland_en.
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Williams, B.G., Zhou, W. (2020). If the WTO Were to Break Down Completely, Would We Stoop and Build It Up with Worn-Out Tools?. In: Lewis, M.K., Nakagawa, J., Neuwirth, R.J., Picker, C.B., Stoll, PT. (eds) A Post-WTO International Legal Order. Springer, Cham. https://doi.org/10.1007/978-3-030-45428-9_6
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