The Regulation of International Trade: Volume 1 GATT. By PETROS C. MAVROIDIS, MIT Press, 2015. ISBN: 9780262029841, 613pp

The Regulation of International Trade: Volume 1 GATT. By PETROS C. MAVROIDIS, MIT Press, 2015.... ‘It was the best of times, it was the worst of times’; the famous opening words for Charles Dickens’ oeuvre, ‘A Tale of Two Cities’, were written over 150 years ago, yet today, seem eerily appropriate for the state of the world we live in. For those of us who deal with International Trade, these words seem apt and echo constantly in our minds as a sort of mantra, falling short of acquiring secondary meaning.1 Not a day goes by without International Trade being gravely maligned, having been turned into shorthand for pretty much every ill of the world; however, at the same time for those working in Trade it is undoubtedly one of the most exciting times to be involved in this discipline.2 To shed some light on these polar views, Professor Petros Mavroidis’ magnus opus, The Regulation of International Trade: Volume 1 GATT, could have not arrived at a better time. Bearing an ambitious title, The Regulation of International Trade, brings to mind an expansive body of laws, regulations, policy, etc. It is then quickly nuanced by the introduction of Volume 1 GATT. To cinephiles like myself, any references to Volume 13 have been seared in our brains with images of an epic effort in synthesis, storytelling, research, references, and analysis that was Quentin Tarantino’s Kill Bill saga.4 I am happy to report that the result of Mavroidis’ work is a significant achievement in International Trade and General Agreement on Tariffs and Trade (GATT) scholarship, much in the same way that Kill Bill was to genre cinema. Similarly as in the aforementioned film, Mavroidis’ work had to be divided into two tomes, most likely ex post facto, but this to the benefit of the readers, since it allows the author to indulge a bit and pace themselves with the material; after all ‘it is not just the devil, but the entire citizenry of hell that lies in the details’.5 This first book is a careful dissection of the most influential agreement in Trade, the GATT, but inevitably touches upon the World Trade Organization (WTO) and broader International Trade matters on several occasions; this, given that, separating the GATT from the WTO is virtually impossible. The author acknowledges his change of mind and heart on many occasions regarding the organization of the content in the book, and this is evident when reading it, since it is difficult to conceive a categorical distinction between the GATT and WTO, as they remain an interlinked thread. A case could be made that the two volumes are parts of a whole6 and they very well may be, but on this occasion we will focus on the first tome. This volume is a valuable addition to the discipline, and it serves as a tool to fight back the misconceptions around Trade while providing a solid foundation to understand where we have been, in order to chart our way to where we should be. International Trade is a multidisciplinary endeavor, and even though Prof. Mavroidis is one of the preeminent legal scholars in the field, he is well versed in Economics also. This proves useful, as he delves repeatedly into the Economic aspects underlying International Trade through one of its key products: GATT. In a time when Trade Policy appears to become increasingly complex, through the addition of new disciplines as well as in the form of added complexity to the existing issues, Mavroidis manages to weave together in a coherent whole the policy, economic, and legal building blocks of the GATT and the WTO. The importance of having a clear understanding of these building blocks cannot be understated, as these will provide the basis for any subsequent developments in the field. It would be disingenuous to say that Trade is the cause of all evils without understanding what Trade is, and in that sense, this book serves as a comprehensive course on the GATT institution. This work is a labour of love from a scholar that has been thinking about Trade for a long time. Professor Mavroidis follows the path chartered by some of the great minds in the field that have come before him: Robert E. Baldwin, Robert E. Hudec, and John H. Jackson to name a few. Mavroidis manages to carry the baton a bit further while at the same time instilling his work with some of the lessons learned from those who walked this path before him. From Prof. Baldwin, Mavroidis takes the economic underpinnings of International Trade Law and Policy; from Prof. Hudec, Mavroidis understands that politics and diplomacy are a major component of International Trade and should be given its due; and from Prof. Jackson, Mavroidis acknowledges how the negotiating records are an integral part of the analysis of International Trade—without it, the picture remains incomplete. It is perhaps unfair to single out these scholars, being that the tome contains abundant references to many others, but the specific influence of these three giants of International Trade does seem to shine through in the author’s work. The book is divided into 9 chapters, painting a pretty detailed picture of the GATT tracing the evolution of the trade liberalization from before the GATT all the way to the WTO—after all, the entire citizenry of hell lies in the details. The first chapter is a treat, as Mavroidis describes the history that lead to the creation of the GATT, in some instances going back to the 1800s and eventually going all the way to the creation of the WTO. If anything, the readers might be left wanting more of this well-researched historical background. However, the intention of the author is not a history lesson; instead, the history is meant to complete the picture by placing us at the time when some of these important events occurred (for some of these events, their importance was acquired in hindsight), and with some of the influential players in shaping them. The chapter is at its best when analyzing the economic theories that underlined and inspired the negotiations—this strength is repeated regularly throughout the volume. The results from the analysis of the economic theories, in the context of one of the most influential trade agreements, is of paramount importance against the backdrop of the trade backlash we are currently witnessing across the world. It is here where this book goes from theory to underlying the potential for practical use by students, negotiators, and the general public; these are not highfalutin concepts that are far removed from our day-to-day lives, au contraire, these are concepts that have real consequences in our lives. By understanding them, we can make better decisions and hold accountable those who negotiate on our behalf. The chapter is rounded up with topics that have taken the spotlight in the last few months and years at the WTO, such as: Plurilateral Agreements, Single Undertaking and Nonmarket Economies (NMEs), to name a few. The discussion on these has evolved since back then, but the foundations necessary to understand them remain intact. Chapter 3 is the longest chapter in the book, and justifiably so, since the most substantial component of the GATT dealt with tariffs. This chapter is a crash course in tariffs, and could likely exist as an independent tome in its own right. The author delves into the legal and economic rationale for tariffs before getting into the different forum for tariff concessions. Under the section contained under forum for tariff concessions, Mavroidis analyses the various possibilities for tariff concession commitments. He even manages to discuss the specific case of the Information Technology Agreement (ITA), which was recently upgraded by some of the ITA participants. Other cases, such as the Environmental Goods Agreement (EGA), were negotiated around the time the book was being completed and are not included in the chapter—perhaps this could be due to the failure from the Participants to conclude the agreement. Nevertheless, the peculiarities of the EGA could have been interesting to analyze, as it was part of a concerted effort in other forums, namely the 2015 Paris Climate Conference. Near the end of the chapter, the author addresses the consequences of withdrawing from the GATT/WTO and the corresponding non-exhaustive options for withdrawing concessions vis-à-vis other trading Members that have left the GATT as contained under Article XXVII of GATT. This matter remained moot to a large extent, having mainly been applied to China when it decided not to become a contracting party in the GATT (China would accede to the WTO in 2001). Mavroidis acknowledges that subsequent practice in two instances have added to the possibilities for withdrawing concessions under Article XXVII of GATT. The questions raised under this article have become increasingly relevant with every passing day based on the backlash against Trade. A book about the GATT would be incomplete without addressing one of its hallmark concepts—Special and Differential (S&D) Treatment. In this chapter, Mavroidis discusses the legal rationale for S&D Treatment and offers a short historical background of how the negotiation evolved. In doing so, the author delves into the Enabling Clause and shares his opinion of the Appellate Body’s treatment of it in its report on European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries (EC - Tariff Preferences); the author believes that the Enabling Clause should have been characterized as a self-standing obligation and not an exception to Article I of the GATT. The burden of proof will largely remain similar for a Complainant claiming violations of Most favoured nation (MFN) or of the Enabling Clause, but for soundness of reason, Mavroidis’ approach is welcomed. He then goes on to discuss how S&D Treatment has evolved through the years by way of the Doha Development Agenda (DDA) and what the author refers to as the Jewel of the DDA—Aid for Trade. Mavroidis concludes this chapter with a succinct discussion of the role of Trade in fighting poverty and inequality. The discussion of this would probably be enough to fill several volumes of content and analysis, but since the WTO does not contain a specific obligation to fight against poverty the author just offers a brief overview. A chapter that is bound to be extremely relevant in the coming years is the one devoted to Preferential Trade Agreements (PTAs). This discussion is not new, having largely started in the field of Trade Economics with the introduction of the phenomenon known as the Spaghetti bowl effect by Jagdish Bhagwati in 1995.7 Mavroidis acknowledges the contributions by Bhagwati and cites other authors that have advanced the discussion. He then goes on to use a North American Free Trade Agreement (NAFTA) case study to exemplify the economic rationale behind PTAs. In assessing the pros and cons of a PTA approach versus the WTO, the author cites arguments on both sides of the coin, even noting how the conclusion of NAFTA enabled the undoing of the deadlock of the Uruguay round. There are no final words to this discussion yet, which probably speaks to the symbiotic nature of the relationship between PTAs and the WTO. The last chapter, to which a substantial number of pages are devoted, is the one dealing with Exceptions and Deviations from Obligations assumed under GATT. This chapter offers the author an opportunity to discuss Appellate Body (AB) reports seemingly back-to-back, as many of these exceptions have been subject of study by the AB. Mavroidis dissects the General Exceptions and annotates his analysis with specific cases, when available. The result is a very useful manual for how to use the General Exceptions, containing a well-thoughtout and consistent analysis. Throughout the chapter, the author notes when the case law got it right and is not afraid to point out when it did not. In justifying his positions, the author distills the legal arguments into concepts accessible to non-lawyers, dispensing with the interpretative legal minutia. The author concludes this chapter with a brief overview of other Deviations from Obligations assumed under the GATT, which include: National Security, Waivers, and Nonapplication. All in all, this book is a valuable contribution to International Trade and it certainly should be on the shelves of those interested in the field. I read this book almost immediately after it was published and I enjoyed going through it in the span of a week. Since then I find myself consulting it on a regular basis, often a couple of times a week. It has become one of my go-to reference books. I can count on the fact that the book will provide a balanced view on almost any GATT concept, highlighting the background negotiating record on how the concept originated and its evolution through case law and practice, peppered with comments on economic theory along the way. Another valuable aspect of the book is the author’s opinion on what he views as deviations from the negotiation intentions, economic theory, and the law itself. This provides the reader with useful policy insight and real-life examples that will surely become handy in casual conversations and even future negotiations. The nature of this book will require it to be updated from time to time, since the case law contained, or ‘subsequent practice’ as the author refers to it, is only available up to December 2014; however, it is worth noting that most of the significant update in the ‘subsequent practice’ in the years since would be more evident in Volume 2. Having said this, I am looking forward to Volume 3 which should likely deal with Trade in Services and the swathe of matters revolving around digital trade. In the meantime, this book will remain on my desk for my day-to-day work.8 Footnotes 1 Secondary meaning, in trademark law parlance means when a term acquires a new identifying meaning through its repetitive use and association with something. 2 Other significant periods likely include the negotiation and conclusion of the GATT and the WTO. 3 In the case of Tarantino’s film, the official title for his 2003 film is Kill Bill: Vol. 1. 4 The references to pop culture might not seem out of place for those familiar with Mavroidis, as he has a penchant for referencing pop culture in the titles of his work. 5 See Preface, at xxv. 6 The creators of Kill Bill ultimately recognized this and released a cut of the film titled Kill Bill: The Whole Bloody Affair, which views the movie as a single piece of work. 7 The term was first used in the paper ‘US Trade Policy: The Infatuation with Free Trade Agreements’. 8 This book review is written in my personal capacity and the opinions expressed herein do not represent the views or opinions of my employer. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Economic Law Oxford University Press

The Regulation of International Trade: Volume 1 GATT. By PETROS C. MAVROIDIS, MIT Press, 2015. ISBN: 9780262029841, 613pp

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Abstract

‘It was the best of times, it was the worst of times’; the famous opening words for Charles Dickens’ oeuvre, ‘A Tale of Two Cities’, were written over 150 years ago, yet today, seem eerily appropriate for the state of the world we live in. For those of us who deal with International Trade, these words seem apt and echo constantly in our minds as a sort of mantra, falling short of acquiring secondary meaning.1 Not a day goes by without International Trade being gravely maligned, having been turned into shorthand for pretty much every ill of the world; however, at the same time for those working in Trade it is undoubtedly one of the most exciting times to be involved in this discipline.2 To shed some light on these polar views, Professor Petros Mavroidis’ magnus opus, The Regulation of International Trade: Volume 1 GATT, could have not arrived at a better time. Bearing an ambitious title, The Regulation of International Trade, brings to mind an expansive body of laws, regulations, policy, etc. It is then quickly nuanced by the introduction of Volume 1 GATT. To cinephiles like myself, any references to Volume 13 have been seared in our brains with images of an epic effort in synthesis, storytelling, research, references, and analysis that was Quentin Tarantino’s Kill Bill saga.4 I am happy to report that the result of Mavroidis’ work is a significant achievement in International Trade and General Agreement on Tariffs and Trade (GATT) scholarship, much in the same way that Kill Bill was to genre cinema. Similarly as in the aforementioned film, Mavroidis’ work had to be divided into two tomes, most likely ex post facto, but this to the benefit of the readers, since it allows the author to indulge a bit and pace themselves with the material; after all ‘it is not just the devil, but the entire citizenry of hell that lies in the details’.5 This first book is a careful dissection of the most influential agreement in Trade, the GATT, but inevitably touches upon the World Trade Organization (WTO) and broader International Trade matters on several occasions; this, given that, separating the GATT from the WTO is virtually impossible. The author acknowledges his change of mind and heart on many occasions regarding the organization of the content in the book, and this is evident when reading it, since it is difficult to conceive a categorical distinction between the GATT and WTO, as they remain an interlinked thread. A case could be made that the two volumes are parts of a whole6 and they very well may be, but on this occasion we will focus on the first tome. This volume is a valuable addition to the discipline, and it serves as a tool to fight back the misconceptions around Trade while providing a solid foundation to understand where we have been, in order to chart our way to where we should be. International Trade is a multidisciplinary endeavor, and even though Prof. Mavroidis is one of the preeminent legal scholars in the field, he is well versed in Economics also. This proves useful, as he delves repeatedly into the Economic aspects underlying International Trade through one of its key products: GATT. In a time when Trade Policy appears to become increasingly complex, through the addition of new disciplines as well as in the form of added complexity to the existing issues, Mavroidis manages to weave together in a coherent whole the policy, economic, and legal building blocks of the GATT and the WTO. The importance of having a clear understanding of these building blocks cannot be understated, as these will provide the basis for any subsequent developments in the field. It would be disingenuous to say that Trade is the cause of all evils without understanding what Trade is, and in that sense, this book serves as a comprehensive course on the GATT institution. This work is a labour of love from a scholar that has been thinking about Trade for a long time. Professor Mavroidis follows the path chartered by some of the great minds in the field that have come before him: Robert E. Baldwin, Robert E. Hudec, and John H. Jackson to name a few. Mavroidis manages to carry the baton a bit further while at the same time instilling his work with some of the lessons learned from those who walked this path before him. From Prof. Baldwin, Mavroidis takes the economic underpinnings of International Trade Law and Policy; from Prof. Hudec, Mavroidis understands that politics and diplomacy are a major component of International Trade and should be given its due; and from Prof. Jackson, Mavroidis acknowledges how the negotiating records are an integral part of the analysis of International Trade—without it, the picture remains incomplete. It is perhaps unfair to single out these scholars, being that the tome contains abundant references to many others, but the specific influence of these three giants of International Trade does seem to shine through in the author’s work. The book is divided into 9 chapters, painting a pretty detailed picture of the GATT tracing the evolution of the trade liberalization from before the GATT all the way to the WTO—after all, the entire citizenry of hell lies in the details. The first chapter is a treat, as Mavroidis describes the history that lead to the creation of the GATT, in some instances going back to the 1800s and eventually going all the way to the creation of the WTO. If anything, the readers might be left wanting more of this well-researched historical background. However, the intention of the author is not a history lesson; instead, the history is meant to complete the picture by placing us at the time when some of these important events occurred (for some of these events, their importance was acquired in hindsight), and with some of the influential players in shaping them. The chapter is at its best when analyzing the economic theories that underlined and inspired the negotiations—this strength is repeated regularly throughout the volume. The results from the analysis of the economic theories, in the context of one of the most influential trade agreements, is of paramount importance against the backdrop of the trade backlash we are currently witnessing across the world. It is here where this book goes from theory to underlying the potential for practical use by students, negotiators, and the general public; these are not highfalutin concepts that are far removed from our day-to-day lives, au contraire, these are concepts that have real consequences in our lives. By understanding them, we can make better decisions and hold accountable those who negotiate on our behalf. The chapter is rounded up with topics that have taken the spotlight in the last few months and years at the WTO, such as: Plurilateral Agreements, Single Undertaking and Nonmarket Economies (NMEs), to name a few. The discussion on these has evolved since back then, but the foundations necessary to understand them remain intact. Chapter 3 is the longest chapter in the book, and justifiably so, since the most substantial component of the GATT dealt with tariffs. This chapter is a crash course in tariffs, and could likely exist as an independent tome in its own right. The author delves into the legal and economic rationale for tariffs before getting into the different forum for tariff concessions. Under the section contained under forum for tariff concessions, Mavroidis analyses the various possibilities for tariff concession commitments. He even manages to discuss the specific case of the Information Technology Agreement (ITA), which was recently upgraded by some of the ITA participants. Other cases, such as the Environmental Goods Agreement (EGA), were negotiated around the time the book was being completed and are not included in the chapter—perhaps this could be due to the failure from the Participants to conclude the agreement. Nevertheless, the peculiarities of the EGA could have been interesting to analyze, as it was part of a concerted effort in other forums, namely the 2015 Paris Climate Conference. Near the end of the chapter, the author addresses the consequences of withdrawing from the GATT/WTO and the corresponding non-exhaustive options for withdrawing concessions vis-à-vis other trading Members that have left the GATT as contained under Article XXVII of GATT. This matter remained moot to a large extent, having mainly been applied to China when it decided not to become a contracting party in the GATT (China would accede to the WTO in 2001). Mavroidis acknowledges that subsequent practice in two instances have added to the possibilities for withdrawing concessions under Article XXVII of GATT. The questions raised under this article have become increasingly relevant with every passing day based on the backlash against Trade. A book about the GATT would be incomplete without addressing one of its hallmark concepts—Special and Differential (S&D) Treatment. In this chapter, Mavroidis discusses the legal rationale for S&D Treatment and offers a short historical background of how the negotiation evolved. In doing so, the author delves into the Enabling Clause and shares his opinion of the Appellate Body’s treatment of it in its report on European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries (EC - Tariff Preferences); the author believes that the Enabling Clause should have been characterized as a self-standing obligation and not an exception to Article I of the GATT. The burden of proof will largely remain similar for a Complainant claiming violations of Most favoured nation (MFN) or of the Enabling Clause, but for soundness of reason, Mavroidis’ approach is welcomed. He then goes on to discuss how S&D Treatment has evolved through the years by way of the Doha Development Agenda (DDA) and what the author refers to as the Jewel of the DDA—Aid for Trade. Mavroidis concludes this chapter with a succinct discussion of the role of Trade in fighting poverty and inequality. The discussion of this would probably be enough to fill several volumes of content and analysis, but since the WTO does not contain a specific obligation to fight against poverty the author just offers a brief overview. A chapter that is bound to be extremely relevant in the coming years is the one devoted to Preferential Trade Agreements (PTAs). This discussion is not new, having largely started in the field of Trade Economics with the introduction of the phenomenon known as the Spaghetti bowl effect by Jagdish Bhagwati in 1995.7 Mavroidis acknowledges the contributions by Bhagwati and cites other authors that have advanced the discussion. He then goes on to use a North American Free Trade Agreement (NAFTA) case study to exemplify the economic rationale behind PTAs. In assessing the pros and cons of a PTA approach versus the WTO, the author cites arguments on both sides of the coin, even noting how the conclusion of NAFTA enabled the undoing of the deadlock of the Uruguay round. There are no final words to this discussion yet, which probably speaks to the symbiotic nature of the relationship between PTAs and the WTO. The last chapter, to which a substantial number of pages are devoted, is the one dealing with Exceptions and Deviations from Obligations assumed under GATT. This chapter offers the author an opportunity to discuss Appellate Body (AB) reports seemingly back-to-back, as many of these exceptions have been subject of study by the AB. Mavroidis dissects the General Exceptions and annotates his analysis with specific cases, when available. The result is a very useful manual for how to use the General Exceptions, containing a well-thoughtout and consistent analysis. Throughout the chapter, the author notes when the case law got it right and is not afraid to point out when it did not. In justifying his positions, the author distills the legal arguments into concepts accessible to non-lawyers, dispensing with the interpretative legal minutia. The author concludes this chapter with a brief overview of other Deviations from Obligations assumed under the GATT, which include: National Security, Waivers, and Nonapplication. All in all, this book is a valuable contribution to International Trade and it certainly should be on the shelves of those interested in the field. I read this book almost immediately after it was published and I enjoyed going through it in the span of a week. Since then I find myself consulting it on a regular basis, often a couple of times a week. It has become one of my go-to reference books. I can count on the fact that the book will provide a balanced view on almost any GATT concept, highlighting the background negotiating record on how the concept originated and its evolution through case law and practice, peppered with comments on economic theory along the way. Another valuable aspect of the book is the author’s opinion on what he views as deviations from the negotiation intentions, economic theory, and the law itself. This provides the reader with useful policy insight and real-life examples that will surely become handy in casual conversations and even future negotiations. The nature of this book will require it to be updated from time to time, since the case law contained, or ‘subsequent practice’ as the author refers to it, is only available up to December 2014; however, it is worth noting that most of the significant update in the ‘subsequent practice’ in the years since would be more evident in Volume 2. Having said this, I am looking forward to Volume 3 which should likely deal with Trade in Services and the swathe of matters revolving around digital trade. In the meantime, this book will remain on my desk for my day-to-day work.8 Footnotes 1 Secondary meaning, in trademark law parlance means when a term acquires a new identifying meaning through its repetitive use and association with something. 2 Other significant periods likely include the negotiation and conclusion of the GATT and the WTO. 3 In the case of Tarantino’s film, the official title for his 2003 film is Kill Bill: Vol. 1. 4 The references to pop culture might not seem out of place for those familiar with Mavroidis, as he has a penchant for referencing pop culture in the titles of his work. 5 See Preface, at xxv. 6 The creators of Kill Bill ultimately recognized this and released a cut of the film titled Kill Bill: The Whole Bloody Affair, which views the movie as a single piece of work. 7 The term was first used in the paper ‘US Trade Policy: The Infatuation with Free Trade Agreements’. 8 This book review is written in my personal capacity and the opinions expressed herein do not represent the views or opinions of my employer. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Journal of International Economic LawOxford University Press

Published: May 23, 2018

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