Finding the Boundaries of International Economic Law

Lester, Simon

doi:10.1093/jiel/jgu011

Cited by 4 publications

(5 citation statements)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…Codex Committees or enforced in trade dispute settlement processes, national governments may also be subject to 'regulatory chill, ' where just the possibility of trade sanctions or costly arbitration is enough to deter regulatory action, 31,32 especially in preferential trade agreements containing investor protections in the form of ISDS provisions.…”

Section: International Trade Regimementioning

confidence: 99%

“…Complaints about adoption of the International Code into domestic law can occur within a variety of WTO committees, including the Technical Barriers to Trade (TBT) Committee and Sanitary and Phytosanitary (SPS) Committee. Due to uncertainty surrounding how Codex standards might be interpreted or enforced in trade dispute settlement processes, national governments may also be subject to ‘regulatory chill,’ where just the possibility of trade sanctions or costly arbitration is enough to deter regulatory action, 31 , 32 especially in preferential trade agreements containing investor protections in the form of ISDS provisions.…”

Section: Introductionmentioning

confidence: 99%

“…This reached beyond the primary goal evident in earlier agreements to prevent domestic regulation from discriminating against foreign (imported) goods. 31 , 39 , 40 The WTO SPS Agreement and references to international standards in the TBT Agreement have elevated the CAC as the principal judge of scientific evidence for trade in food, the arbiter weighing harmonization of standards to facilitate trade against health concerns where the two may conflict. Thow et al documented the enormous importance of the CAC’s Codex benchmarks in justifications of complaints at the WTO levied in regard to domestic policies regulating nutrition labelling in Chile, Ecuador, Indonesia, Peru and Thailand.…”

Section: Introductionmentioning

confidence: 99%

“…As a recent assessment of these legal issues notes, the language in the WTO TBT Agreement on its face leaves room for domestic regulation in alignment with WHO’s guidelines and recommendations. 42 Nevertheless, the shift that occurred with implementation of the WTO Agreements—reaching beyond primarily just preventing discrimination against imports, and providing a new Arbitration Body to facilitate stronger enforcement of international standards—has opened the door for countries to levy more complaints against domestic regulatory measures on the grounds of being “overly trade-restrictive” or “not science-based.” 31 , 43 This introduces uncertainty for countries seeking to regulate but concerned about the costs of protracted litigation and the threat of punitive tariffs, whether or not sanctioned through arbitration.…”

Section: Introductionmentioning

confidence: 99%

See 3 more Smart Citations

What You Don’t Know About the Codex Can Hurt You: How Trade Policy Trumps Global Health Governance in Infant and Young Child Nutrition

Russ

Baker

Byrd

et al. 2021

Int J Health Policy Manag

View full text Add to dashboard Cite

Background: International food standards set by the Codex Alimentarius Commission (CAC), have become more prominent in international trade politics, since being referenced by various World Trade Organization (WTO) agreements. The new standing of the CAC imposes limits on domestic public health regulation. We show this includes implementation of the World Health Organization (WHO) International Code of Marketing of Breast-milk Substitutes. Methods: Using trade in commercial milk formulas (CMF) as a case study, we collected detailed data on interventions across various WTO bodies between 1995 and 2019. We used language from these interventions to guide data collection on member state and observer positions during the CAC review of the Codex Standard for Follow-up Formula (CSFUF), and during CAC discussions on the relevance of WHO policies and guidelines. Results: Exporting member states made 245 interventions regarding CMFs at the WTO, many citing deviations from standards set by the CAC. These did not occur in formal disputes, but in WTO Committee and Accession processes, toward many countries. In Thailand, complaints are linked to weakened regulation. Exporters also sought to narrow the CSFUF at the CAC in a way that is at odds with recommendations in the International Code. Tensions are growing more broadly within the CAC regarding relevance of WHO recommendations. Countries coordinated during WTO committee processes to advocate for reapportioning core WHO funding to the CAC and in order to further influence standard-setting. Conclusion: The commercial interests of the baby food industry are magnifying inconsistencies between health guidelines set by the WHO, standard-setting at the CAC, and functions of the WTO. This poses serious concerns for countries’ abilities to regulate in the interests of public health, in this case to protect breastfeeding and its benefits for the health of infants, children and mothers.

show abstract

Section: International Trade Regimementioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

See 2 more Smart Citations

What You Don’t Know About the Codex Can Hurt You: How Trade Policy Trumps Global Health Governance in Infant and Young Child Nutrition

Russ

Baker

Byrd

et al. 2021

Int J Health Policy Manag

View full text Add to dashboard Cite

show abstract

“…80 Yet these disputes demonstrate a pattern: the Appellate Body is enforcing some criteria more strictly than others. In all these disputes, violations were found under the chapeau or even-handedness test rather than the Article XX subparagraphs and TBT Article 2.2, obligations with which the respondents were in compliance.…”

Section: Rationality V Proportionalitymentioning

confidence: 99%

Is it Rational and Consistent? the Wto’s Surprising Role in Shaping Domestic Public Policy

Lydgate¹

2017

Journal of International Economic Law

View full text Add to dashboard Cite

What makes regulation rational? And why is rationality important to an international tribunal? In the WTO context, these questions have had significant implications for the public policy of its Member countries. The WTO Appellate Body's emerging emphasis on means-ends rationality testing is based on the questionable premise that consistent regulation is non-discriminatory. It has led regulators, such as the EU, to defend -and probably even construct -complex regulation in a way that emphasizes conformity to one overarching policy objective. More surprisingly, the Appellate Body has re-cast itself as public policy watchdog, pointing out when governments do not appear to be committed to their cause. In response, governments have strengthened disputed regulation, rather than making it less trade-restrictive. This retreat to rationality can be seen as a result of a difficult challenge facing the Appellate Body: how to review national regulation without passing judgment on it. More specifically, the rationality test pays the price of the Appellate Body's retreat from proportionality.

show abstract

Addressing Regulatory Trade Barriers in Mega-Regional Trade Agreements

Lester

Manak

2017

Mega-Regional Trade Agreements

View full text Add to dashboard Cite

Finding the Boundaries of International Economic Law

Cited by 4 publications

References 0 publications

What You Don’t Know About the Codex Can Hurt You: How Trade Policy Trumps Global Health Governance in Infant and Young Child Nutrition

What You Don’t Know About the Codex Can Hurt You: How Trade Policy Trumps Global Health Governance in Infant and Young Child Nutrition

Is it Rational and Consistent? the Wto’s Surprising Role in Shaping Domestic Public Policy

Addressing Regulatory Trade Barriers in Mega-Regional Trade Agreements

Contact Info

Product

Resources

About