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Book examines role of trade agreements in times of financial uncertainty

By ILENE FLEISCHMANN

Published February 20, 2014

Meredith Lewis

Meredith Lewis

Meredith Kolsky Lewis, who has long been intrigued by the complexities of the World Trade Organization (WTO) and other trade agreements, examines international economic law issues as a primary focus of her legal research.

Now, in a new book she has co-edited, Lewis, associate professor in the UB Law School, and other authors delve into important questions as to what role trade agreements — multilateral, plurilateral and bilateral — should play in the current climate of global financial uncertainty and how best to plan for a more stable economic future.

“Trade Agreements at the Crossroads” (Routledge Press) was co-edited with Susy Frankel, professor of law at Victoria University of Wellington in Wellington, New Zealand. Lewis began her academic career at Victoria University in 2005 and maintains a faculty appointment at the New Zealand law school. The book developed out of a conference on trade agreements held by the New Zealand Centre of International Economic Law, which Lewis and Frankel co-founded at Victoria.

According to Lewis, the timing of the conference was important: It came in the midst of the global financial crisis and at a time when the current “Doha Round” of WTO negotiations, begun in 2001, had stalled.

“We thought this provided a lot of fodder for academic discussion,” Lewis says. “The WTO was in a state of uncertainty and there was this broader economic uncertainty globally. … The financial crisis directed countries’ focuses inward onto their own economies and took away some of their appetite for putting a lot of energy into international negotiations.”

The chapters comprising the edited collection examine trade agreements in the context of the global economic crisis and the uncompleted WTO Doha Round of trade negotiations. The contributors, who hail from academic, governmental and legal practitioner positions around the world, critically examine the WTO, free trade agreements, bilateral investment treaties and other international economic law instruments. The authors grapple with a variety of emerging issues that have the potential to strengthen or weaken the global trading system, including matters of treaty interpretation, terms of new agreements and the potential effects of existing agreement provisions.

In addition to the broad agreements on trade, tariffs and regulation that WTO signatories have entered into, member nations also enter into bilateral trade and investment agreements with each other. This has been occurring more and more frequently, in part out of frustration with the lack of progress in the Doha Round. And because of that, Lewis says, a host of complications could arise.

If, for example, a bilateral free trade agreement (FTA) includes a dispute-settlement mechanism, it may be possible for a given dispute to be raised pursuant to the FTA dispute-settlement mechanism and/or pursuant to the WTO’s dispute-settlement mechanism. The possibility of overlapping jurisdiction raises the potential for parallel proceedings and inconsistent interpretations of similar or identical treaty language, as well as such questions as whether the WTO dispute-settlement mechanism can or should ever decline its jurisdiction.

Those kinds of issues are discussed in the book’s opening chapter, “What to Do When Disagreement Strikes?: The Complexity of Dispute Settlement Under Trade Agreements,” which Lewis co-wrote with Peter Van den Bossche, a member of the WTO’s seven-member Appellate Body. Van den Bossche was the keynote speaker at the conference from which the book developed.

To flesh out the potential for such disputes, the authors identify a panorama of dispute-settlement mechanisms currently existing under the WTO and under regional and bilateral free trade agreements, ranging from non-existent to primarily diplomatic to highly rules-based. The chapter goes on to identify which mechanisms along the continuum have the potential to clash or overlap with the WTO dispute settlement mechanism and identifies specific examples of such possible overlaps, as well as possible solutions. The authors argue that the WTO dispute-settlement mechanism has a number of advantages over the forums established by regional trade agreements, and thus most disputes that arise under these pacts should continue to come before the WTO for resolution.

Other chapters in the book focus on a range of issues, including product safety regulations, prospects for further regionalization and economic cooperation in the Asia-Pacific region, trade and climate change, and the possibility of suspending intellectual property rights to retaliate against a WTO member that has failed to comply with a dispute-settlement ruling against it.

Lewis notes that the WTO’s just-concluded biennial Ministerial Conference, held in Bali in December 2013, led to agreement on some fronts, producing a “Bali Package” of accords that some hope will provide momentum for progress in the broader Doha Round of negotiations. Nonetheless, trade agreements will remain a dynamic, evolving phenomenon meriting continued focus.