My father, John Howard Jackson, was a life-long advocate for strengthening a rules-based trading system. While he recognized the importance of developing a predictable, transparent economic system, the larger goal in his view was to contribute to creating conditions for world peace. He argued for a system that would favour co-operation in situations where domestic policy-makers might otherwise make decisions that would have negative spill-over effects on their trading partners. At the same time, he recognized the tension between the need to have rules conducive to stability and predictability and the need to allow official discretion to address targeted problems. The challenge of crafting institutions that could effectively manage this tension captured his attention throughout his career.

When establishing whether a disputed regulation is protectionist under the WTO National Treatment Principle, there are two key elements: its effect on the market for competitive products, and its intent or policy rationale. Yet the Appellate Body has formally rejected both elements, and in the surprising 2014 outcome of EC–Seal Products, under the key provision GATT Article III(4), the latter was simply denied. This obfuscation leads to implicit and explicit conflation of these elements. In some disputes, qualitative findings about the existence and nature of competitive relationships are presented using the language of quantitative market analysis. In others, compelling policy objectives shape the outcome of a supposedly market-based analysis. This article proposes an approach that synthesizes two strands of scholarship, advocating more rigorous use of market-based evidence and stronger analysis of policy rationale. Separating these elements will achieve the appropriate balance between them and lead to greater transparency in dispute outcomes.

We use new data on trade and production in 167 countries to infer estimates of trade costs for manufactured goods and agriculture for 1996‒2010. Trade costs are strongly declining in country income level. Among developing countries, only the upper middle income group has been successful in reducing trade costs faster than elsewhere in the world. Sub-Saharan African countries and low income countries remain subject to very high trade costs. Regional trade agreements, maritime transport connectivity, and trade facilitation performance are important determinants of trade costs.

Under the prevailing WTO jurisprudence, the mandatory/discretionary distinction is applied to Article 1.1(b) of the SCM Agreement whenever a Member's measure is challenged ‘as such’ pursuant to the SCM Agreement. However, applying the mandatory/discretionary distinction vis-à-vis Article 1.1(b) may render the entire SCM Agreement vulnerable against certain subsidies designed to confer benefits systematically through private intermediaries. In order to prevent such vulnerability, Article 1.1(b) of the SCM Agreement should be construed to cover benefits conferred as consequences of underlying financial contributions, without being limited by the mandatory/discretionary distinction.

The article discusses circumvention and anti-circumvention in international trade with a focus on Australia's anti-circumvention mechanism and in particular the first anti-circumvention investigation in Australia. It identifies the major issues relating to circumvention and anti-circumvention in the GATT/WTO negotiations which have led to the failure of WTO members to conclude uniform rules on anti-circumvention. The article argues that multilateral anti-circumvention rules are necessary to standardize national anti-circumvention laws and practice and discipline unilateral use of anti-circumvention measures. The article further argues that Australia's anti-circumvention law and practice, as reflected in its first anti-circumvention investigation, may have violated WTO rules and is likely to lead to increasing protectionism to cost of WTO members and Australia's FTA trading partners. Australia's unjustified use of anti-circumvention measures is unlikely to foster the development of its import-competing industries and may provoke retaliation by other countries.

This compliance proceeding under Article 21.5 of the DSU concerned measures taken by the United States to implement the recommendations and rulings of the Dispute Settlement Body (DSB) in US–Tuna II (Mexico). In US–Tuna II (Mexico), the DSB found that certain US measures concerning the importation, marketing, and sale of tuna products (taken together, the Original Tuna Measure) were inconsistent with the Agreement on Technical Barriers to Trade (the TBT Agreement). The Original Tuna Measure, inter alia, contained conditions under which tuna products could be labelled ‘dolphin safe’. The United States' measure taken to comply with the recommendations and rulings of the DSB consisted of an amendment to the Original Tuna Measure (the 2013 Final Rule). The Appellate Body generally referred to the Original Tuna Measure, together with the 2013 Final Rule, as the Amended Tuna Measure. The Amended Tuna Measure was the focus of this compliance proceeding.

On 29 May 2015, the Dispute Settlement Body (DSB) adopted the Article 21.5 Appellate Body reports in these disputes, and the reports of the compliance panel as modified by the Appellate Body. The findings adopted by the DSB were that the United States' amended country of origin labelling (COOL) requirements violated Article 2.1 of the TBT Agreement and Article III:4 of the GATT 1994 because they continued to accord less favourable treatment to imported livestock than to like domestic livestock. Thereafter, Canada and Mexico both filed requests with the DSB for authorization to suspend concessions or other obligations under Article 22.2 of the DSU. Canada and Mexico sought authorization to suspend concessions and related obligations in the goods sector under the GATT 1994 to an annual value of CAD3.068 billion and USD713 million, respectively. The mandate of the Arbitrator in these proceedings was to ‘determine whether the level of such [proposed] suspension is equivalent to the level of nullification or impairment' to Canada and Mexico.

In İçkale İnşaat Limited Şirketi v. Turkmenistan, the investment arbitral tribunal's majority issued an award in March 2016, under the Turkmenistan–Turkey Bilateral Investment Treaty (the BIT), dismissing all of the claimant's claims in their entirety.