For several decades, civil society has sought to impose greater responsibility on companies for cross-border social wrongs. Multiple legal subfields and initiatives have emerged to take on this work: corporate social responsibility (CSR); business and human rights (BHR); responsible business conduct codes; environment, social, and governance (ESG) standards; and corporate due diligence schemes, among them. These many projects have culminated in national legislation across a range of jurisdictions imposing reporting and compliance requirements on companies, as well as in the development of soft law standards. Despite these efforts, international treaty initiatives to create binding obligations on companies and to require them to adopt certain human rights principles have made limited progress.

What are secretariats for in international dispute settlement bodies? The question is implicit in much of what Joost Pauwelyn and Krzysztof Pelc have written in their important article, “Who Guards the ‘Guardians of the System?’ The Role of the Secretariat in WTO Dispute Settlement,” but is one that they do not ask outright.1 Pauwelyn and Pelc thoughtfully describe what the World Trade Organization (WTO) dispute settlement secretariat (WTO Secretariat) does as part of their call to determine what the WTO Secretariat is for. Asking what secretariats ought to be for advances the valuable work that has been done on these institutions with an eye to new secretariats that states are now constructing. This Essay makes two points. First, it argues that the work of the WTO Secretariat is typical of many international adjudicatory secretariats, especially those assisting with disputes over matters of international economic law. Seeing those similarities helps us understand how dispute settlement constituencies view the purpose of such secretariats: to carry out the activities highlighted by Pauwelyn and Pelc. Second, the essay picks up where Pauwelyn and Pelc left off and maintains that our collective attention ought to turn to newly envisioned and recently constructed trade dispute secretariats, and their substitutes. The authors provide a platform for examining what experimental designs of secretariats in upcoming trade agreements might look like, and, more important, what we think those secretariats are for.

This paper reviews the trade agreement landscape and argues that the conventional understanding of trade agreements as encapsulated in the WTO Agreements is now outdated. This misperception about trade agreements is not just an institutional insufficiency. Concentration on those agreements has led many practitioners and commentators to underestimate the variable texture of the global trade agreement fabric. But these shortcomings have not inhibited states from concluding innovative alternatives to regulate and manage the cross-border movement of goods and services. As this paper shows, trade-related agreements that do not fit the perceived traditional mold have proliferated. Given these advances, more policy and scholarly attention is required. Accordingly, this paper serves as a roadmap for the accommodation of trade agreements within the WTO and as an agenda for additional research.

The Appellate Body (AB) report in Korea–Pneumatic Valves is among the most structurally complex of recent trade remedies reports. The AB weaves a complicated web to explicate the intricacies of the relationship among the relevant provisions on injury determination in anti-dumping disputes in the midst of a contentious and long-running series of disputes between two close regional trading powers. This Article first examines the Korean investigation and its significance in economic terms. Second, it analyzes the AB's conclusions on Article 6.2 of the Dispute Settlement Understanding regarding the panel request and the significance of the AB's treatment. Third, it studies the AB's comments on the panel's anti-dumping calculations where the AB amplifies its prior pronouncements on the elements of injury and causation. Finally, the Article situates this dispute in the broader political debates playing out both at the AB and between the two disputing parties.

International trade dispute settlement today encompasses many modes of operation across several different fora. Given this diversity, it is difficult to say whether there is a clear “2.0” version of trade dispute settlement. While such a label may suggest that the World Trade Organization (WTO) Dispute Settlement Understanding (DSU) is the “1.0,” the WTO system is in fact a revision to the prior General Agreement on Tariffs and Trade (GATT) enforcement arrangement. The state of play today for trade dispute settlement belies any clear label apart from what we might try to use to capture a variegated landscape that is constantly in motion. States continue to experiment with compliance and enforcement tools, such that singular directional statements are insufficient to capture what is happening in practice.

In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral action, the Trump Administration has returned to relying heavily on domestic statutes to impose tariffs on goods imported from U.S. trading partners and on those from one country in particular: China.

Again, we are delighted to have you here. I am Kathleen Claussen. I teach at the University of Miami Law School, and I am delighted to moderate this session that will address current U.S. trade policy, and this particular moment in time in U.S. trade policy, which some have called, as you know well, a trade war.

With the creation of the World Trade Organization (WTO) in 1995, major changes were made to the dispute settlement system that had previously governed international trade disputes. Prior to the WTO, the dispute settlement system that had evolved under the General Agreement on Tariffs and Trade (GATT) was widely believed to suffer from certain structural weaknesses. One perceived weakness was that the establishment of a dispute settlement panel or the adoption of a panel's report required a positive consensus of all the GATT contracting parties, effectively allowing respondents to block losing outcomes against themselves. Thus, one major change that resulted from the Uruguay Round of negotiations (which led to the creation of the WTO) was the replacement of the positive consensus rule with a negative consensus rule such that to block establishment of a panel or adoption of a panel report, all WTO members have to agree not to establish or not to adopt the report.

This essay examines the challenges and opportunities for regional trade lawmaking in the U.S.-Africa relationship. On the eve of the conclusion of an African continental free trade agreement, the U.S. trade law relationship with the continent remains focused on regional groups. Questions remain as to whether the existing trade law regime offers the flexibility necessary to accommodate alternative models to free trade agreements that may best serve the needs of African and U.S. constituencies. The essay proceeds in four parts. First, I sketch the current state of play in U.S.-Africa trade relations. Next, I outline how the U.S. and African approaches to trade lawmaking have differed. I then turn to two sets of challenges—one domestic and one international—that may impede innovation in developing a U.S.-Africa trade law relationship consistent with African interests. Finally, the essay concludes with an exploration of possible alternatives and issues not yet considered in the transcontinental dialogue on trade.

These remarks are derived from a forthcoming work considering the future of international trade law. Compared with most features of the international legal system, the regional and bilateral trade law system is in the early stages of its evolution. For example, the United States is a party to fourteen free trade agreements currently in force, all but two of which have entered into force since 2000. The recent proliferation of agreements, particularly bilateral and regional agreements, is not unique to the United States. The European Union recently concluded trade agreement negotiations with Canada, Singapore, and Vietnam to add to its twenty-seven agreements in force and is negotiating approximately ten additional bilateral or multilateral agreements. In the Asia-Pacific Region, the number of regional and bilateral free trade agreements has grown exponentially since the conclusion of the Association of Southeast Asian Nations (ASEAN) Free Trade Area of 1992. At that time, the region counted five such agreements in force. Today, the number totals 140 with another seventy-nine under negotiation or awaiting entry into force. The People's Republic of China is negotiating half a dozen bilateral trade agreements at present to top off the sixteen already in effect. India likewise is engaged in at least ten trade agreement negotiations. The World Trade Organization (WTO) reports 267 agreements of this sort in force among its members as of July 1, 2016.