The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS

Avinash Sharma: Improving Dispute Settlement in Wto: Flattering or Faltering?

Equipped with measures to ensure compliance with its decisions, the dispute settlement system of the Wto is quite often regarded as the symbol of a rule-based multilateral trading system. Small countries have taken and won disputes against big Wto members, notwithstanding certain functional and structural aspects of the Dsb, which have been in centre stage and a matter of significant debate since its inception. Issues of transparency, poor countries’ accessibility to the Dsb system, the cost of litigation, the poor compliance record of developed countries with regard to Dsb decisions, and the remedy against non-compliance (i.e. retaliation through withdrawal of concessions) has triggered the debate for its reform, which is of course long overdue.  Does the Wto have an inherent “lack of democratic legitimacy” or a “democratic deficit”? Developing countries must feel that the system will not only give them the opportunity to win a case but also the effective means to enforce the rulings. Up until today, unfortunately, the Dsb negotiations have not led to any concrete and logical end in the form of any agreement, and the focus on Dsb reforms is comparatively less. With no prospect of finishing of the Doha Development Agenda in foreseen terms due to non-convergence on agriculture, industrial tariffs and services, there seems to be no urgency for the review of the Dsb unless there is a real breakthrough in other key issues.

Avinash Sharma is an advocate at the High Court of Delhi at New Delhi , India and presently an LL.M. Candidate at the Indian Law Institute.

An Chen: Distinguishing Two Types of Countries and Properly Granting Differential Reciprocity Treatment—Re-comments on the Four Safeguards in Sino-Foreign Bits Not to be Hastily and Completely Dismantled  

Some Fdi dispute settlement provisions in Sino-foreign Bits are open to question.  In future negotiations, for seeking benefits and avoiding harm, China needs to keep a clear mind, stand on its own national situations, learn lessons from international practices, enhance its sense of risk, uphold the rights authorized by international conventions and flexibly use the four authorized rights as “safeguards”. Thus, China should distinguish the North and the South countries, properly grant differential reciprocity treatment, and explicitly exclude the general application of the Mfn clause to Fdi dispute settlement procedures. To achieve that, China needs to strike for proper balances between “absorbing Fdi inwards” and “promoting Cdi outwards” and between protecting the legitimate rights of foreign investors and safeguarding the sovereignty and essential security of the host country, so as to play a model role for developing countries.  

An Chen is Senior Professor of the Law School of Xiamen University, People’s Republic of China , and former Dean of the School (1987–1998); Chairman, Chinese Society of International Economic Law since 1993; and an International Arbitrator, selected and designated by the Chinese government to the International Centre for Settlement of Investment Disputes (Icsid) under the Washington Convention since 1993.

Mehdi Salehizadeh and Feraidoon (Fred) Raafat: Global Implications of the Failed Doha Trade Talks

The Wto was structured as a multilateral agency with the primary aim of spearheading a global-level agreement on trade, tariff-reduction, investment rules, and property protection.  Unfortunately, the Wto has failed to produce a final agreement on the Doha Round of global trade talks.  This paper evaluates some of the key implications of this failure, which include: the Wto’s performance within the context of its mandates—i.e., the organization’s usefulness or its raison d'être; the proliferation of bilateral and regional trade agreements; the latest evidence on open (“fair”) trade which question the net benefits accruing to developing/emerging economies belonging to the Wto and for non-members to join; and challenges facing multinational corporations navigating through a myriad of trade and investments accords.  The overall conclusion: the Wto needs to re-define its role.

Mehdi Salehizadeh is a Professor in the Department of Finance of the College of Business Administration at San Diego State University , San Diego , California .

Feraidoon (Fred) Raafat is a Professor in the Department of Information and Decision Systems of the College of Business Administration at San Diego State University , San Diego , California .

Hakim Ben Hammouda, Stephen N. Karingi and Mustapha Sadni Jallab: Did Africa Benefit in Hong Kong ?

 This paper argues that Africa did not benefit much from the Hong Kong Meeting of the Wto. After recalling Africa’s concerns and priorities in the Doha Round and critically looking at some of the proposals on the modalities that are to be developed ultimately in that Round, it raises the pertinent question whether the Doha Round is actually addressing Africa ’s concerns. Using empirical evidence on agriculture and non-agriculture market access (Nama) negotiations and the unrestricted market access question, it builds a case why it is likely that Africa may have only little benefit even from an ambitious liberalisation. It further argues that other Ldcs apart from the African ones may benefit more as a result of the limited supply capacity and low diversification in Africa . By presenting evidence on diversification trends, the paper concludes that it will be necessary for key levers to be established that can form part of a tool-kit that African countries can use to ensure that they attain diversification results that are not only favorable to trade but also economic growth.

The authors are staff members of the UN Economic Commission for Africa . Hakim Ben Hammouda is Chief Economist of the Uneca and Director of the Trade, Finance and Economic Development Division. Stephen N. Karingi is Senior Economic Affairs Officer and Chief of the Trade Negotiation Section. Mustapha Sadni Jallab is Economic Affairs Officer in the same division.

Cai Congyan: Change of the Structure of International Investment and the Development of Developing Countries’ Bit Practice—Towards A Third Way of Bit Practice

There is an ought-to-be close relationship between the structure of international investment and developing countries’ bilateral investment treaty (Bit) practice. In this article, the author reviews historically the characteristics of the structure of international investment and developing countries’ Bit practice before and after the 1990s and assesses the relationship between them. Based upon that, the author analyzes the possible development of and risks incurred by developing countries’ Bit practice from the perspectives of conservatism and liberalization respectively in the new heterogeneous context rather than the traditional homogeneous context. Furthermore, the author proposes that the Development-Oriented approach, rather than the dichotomy of conservativeness and liberalization, should be established as a Third Way to guide the future Bit practice of developing countries. Some suggestions are provided in particular towards the future Bit practice of China , a leading capital exporter in the developing world.

Cai Congyan is Doctor and Associate Professor of International Law at the School of Law of  Xiamen University, People’s Republic of China; Deputy Secretary-General of the Chinese Society of International Economic Law (Csiel); Executive Editor of the Chinese Journal of International Economic Law; and a Member of the Editorial Board of the Journal of East Asia and International Law.

 Badar Alam Iqbal: Wto: A Deeply Divided Membership

 Since the formation of the World Trade Organization (Wto) January 1, 1995, the world trade body has failed to discharge its duties and responsibilities and, hence, the extent of differences between the developed and developing countries on certain vital and strategic issues, sine quo non for the survival of the global multilateral trading system and antidote of bilateralism, has been on the rise. These differences reached their optimum level after the Doha Development Agenda. Thereafter, the negotiations have failed to make any breakthrough in the global trade negotiations. These are very critical and dangerous trends that have emerged. These trends and this situation must be avoided at all cost for the sake of survival of the Wto and the multilateral trading system. The present paper analyses the emerging trends and issues in respect of the negotiations that have taken place under the Wto regime. The paper has three sections, and each section provides a detailed analysis on the three vital and strategic issues with which the Wto is confronted.

Badar Alam Iqbal is Dean of the Faculty of Commerce of Aligarh Muslim University in Aligarh , India anda  Former Fulbright Visiting Professor at Claflin University in Orangeburg , South Carolina .