Subsidiarity perspectives on the new trade agenda

Journal of International Economic Law

Volumn 3, Issue 1, 2000, Pages 83-114

  Sauvé, Pierre ^a,b,c   Zampetti, Americo Beviglia ^a,d  

^a HARVARD UNIVERSITY   (United States)

^b BROOKINGS INSTITUTION   (United States)

^c OECD   (France)

^d EUROPEAN COMMISSION   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034381219     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/3.1.83     Document Type: Article

References (115)

1. See Singapore Ministerial Declaration, adopted on 13 December 1996, WTO doc WT/MIN(96)/DEC.
2. See 'Communiqué: Meeting of the Council at Ministerial Level', SG/COM/NEWS(96)53 (Paris: OECD).
3. Some commentators have even used the word 'constitution', see, for instance, B. Hindley, 'Two Cheers for the Uruguay Round' in B. Hindley and D. Lal (eds), Trade Policy Review 1994 (Centre for Policy Studies 1994).
4. See M. Desai, 'Organising the Only Game in Town' in The World Today (vol 52(12) 1996), at 310-12.
5. This approach has been consistently advocated by the European Community. See most recently, Communication of the Commission to the Council and the European Parliament, 'The EU Approach to the WTO Millennium Round', 8 July 1999, COM(1999) 331 final.
6. For a consideration of some of the 'architectural' implications of fitting investment rules within the WTO, see P. Sauvé, 'Services and the International Contestability of Markets', 5(1) Transnational Corporations, 37-55 (April 1996); see also A. Beviglia Zampetti and P. Sauvé, 'Onwards to Singapore: The International Contestability of Markets and the New Trade Agenda', 19(3) The World Economy 333-43 (May 1996).
7. For a consideration of some of the 'architectural' implications of fitting investment rules within the WTO, see P. Sauvé, 'Services and the International Contestability of Markets', 5(1) Transnational Corporations, 37-55 (April 1996); see also A. Beviglia Zampetti and P. Sauvé, 'Onwards to Singapore: The International Contestability of Markets and the New Trade Agenda', 19(3) The World Economy 333-43 (May 1996).
8. See J. Peterson (1994), 'Subsidiarity: A Definition to Suit Any Vision?', 47(1) Parliamentary Affairs 116-32 (1994).
9. The notion of subsidiarity has been introduced in a general way in the EEC Treaty by the Maastricht amendments. Article 3(b) states that in areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. See N. Bernard, 'The Future of European Economic Law in the Light of the Principle of Subsidiarity', 33 Common Market L Rev 633-66 (1996) (and further references indicated therein); and G. Bermann, 'Subsidiarity and the European Community', 17(1) Hastings Int'l and Comp L Rev 97-112 (1993). Even in the Community context the legal significance of the principle is not well defined. It remains unclear whether the subsidiarity principle is amenable to judicial review or, in light of its political content, should only be regarded as a guiding principle for the structuring of the relationships between Community institutions and Member States. See J. Palacio Gonzáles, 'The Principle of Subsidiarity (A Guide for Layers with a Particular Community Orientation)', 20(4) European L Rev 355-70 (1995); A. Toth, 'Is Subsidiarity Justiciable?', 19(3) European L Rev 268-85 (1994).
10. The notion of subsidiarity has been introduced in a general way in the EEC Treaty by the Maastricht amendments. Article 3(b) states that in areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. See N. Bernard, 'The Future of European Economic Law in the Light of the Principle of Subsidiarity', 33 Common Market L Rev 633-66 (1996) (and further references indicated therein); and G. Bermann, 'Subsidiarity and the European Community', 17(1) Hastings Int'l and Comp L Rev 97-112 (1993). Even in the Community context the legal significance of the principle is not well defined. It remains unclear whether the subsidiarity principle is amenable to judicial review or, in light of its political content, should only be regarded as a guiding principle for the structuring of the relationships between Community institutions and Member States. See J. Palacio Gonzáles, 'The Principle of Subsidiarity (A Guide for Layers with a Particular Community Orientation)', 20(4) European L Rev 355-70 (1995); A. Toth, 'Is Subsidiarity Justiciable?', 19(3) European L Rev 268-85 (1994).
11. The notion of subsidiarity has been introduced in a general way in the EEC Treaty by the Maastricht amendments. Article 3(b) states that in areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. See N. Bernard, 'The Future of European Economic Law in the Light of the Principle of Subsidiarity', 33 Common Market L Rev 633-66 (1996) (and further references indicated therein); and G. Bermann, 'Subsidiarity and the European Community', 17(1) Hastings Int'l and Comp L Rev 97-112 (1993). Even in the Community context the legal significance of the principle is not well defined. It remains unclear whether the subsidiarity principle is amenable to judicial review or, in light of its political content, should only be regarded as a guiding principle for the structuring of the relationships between Community institutions and Member States. See J. Palacio Gonzáles, 'The Principle of Subsidiarity (A Guide for Layers with a Particular Community Orientation)', 20(4) European L Rev 355-70 (1995); A. Toth, 'Is Subsidiarity Justiciable?', 19(3) European L Rev 268-85 (1994).
12. The notion of subsidiarity has been introduced in a general way in the EEC Treaty by the Maastricht amendments. Article 3(b) states that in areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. See N. Bernard, 'The Future of European Economic Law in the Light of the Principle of Subsidiarity', 33 Common Market L Rev 633-66 (1996) (and further references indicated therein); and G. Bermann, 'Subsidiarity and the European Community', 17(1) Hastings Int'l and Comp L Rev 97-112 (1993). Even in the Community context the legal significance of the principle is not well defined. It remains unclear whether the subsidiarity principle is amenable to judicial review or, in light of its political content, should only be regarded as a guiding principle for the structuring of the relationships between Community institutions and Member States. See J. Palacio Gonzáles, 'The Principle of Subsidiarity (A Guide for Layers with a Particular Community Orientation)', 20(4) European L Rev 355-70 (1995); A. Toth, 'Is Subsidiarity Justiciable?', 19(3) European L Rev 268-85 (1994).
13. See G. Majone, 'Comparing Strategies of Regulatory Rapprochement' in Regulatory Co-operation for an Interdependent World (Paris: OECD 1994), 155-77.
14. See J. Mittelman, 'Rethinking the "New Regionalism" in the Context of Globalization', 2 Global Governance 189-214 (1996), note 2; S. Strange, 'Rethinking Structural Change in the International Political Economy: States, Firms and Diplomacy' in R. Stubbs and G. Underhill (eds), Political Economy and the Changing Global Order (New York: St Martin's Press 1994).
15. See J. Mittelman, 'Rethinking the "New Regionalism" in the Context of Globalization', 2 Global Governance 189-214 (1996), note 2; S. Strange, 'Rethinking Structural Change in the International Political Economy: States, Firms and Diplomacy' in R. Stubbs and G. Underhill (eds), Political Economy and the Changing Global Order (New York: St Martin's Press 1994).
16. See, for instance, E. Cohen (1996), La Tentation Hexagonale: la souveraineté à l'épreuve de la mondialisation (Paris: Fayard 1996); P. Hurst and G. Thompson, Globalisation in Question (Oxford: Polity 1996); B. Kingsbury, 'Sovereignty and Inequality', 19(4) European Journal of Int'l Law 399-625 (1998).
17. See, for instance, E. Cohen (1996), La Tentation Hexagonale: la souveraineté à l'épreuve de la mondialisation (Paris: Fayard 1996); P. Hurst and G. Thompson, Globalisation in Question (Oxford: Polity 1996); B. Kingsbury, 'Sovereignty and Inequality', 19(4) European Journal of Int'l Law 399-625 (1998).
18. See, for instance, E. Cohen (1996), La Tentation Hexagonale: la souveraineté à l'épreuve de la mondialisation (Paris: Fayard 1996); P. Hurst and G. Thompson, Globalisation in Question (Oxford: Polity 1996); B. Kingsbury, 'Sovereignty and Inequality', 19(4) European Journal of Int'l Law 399-625 (1998).
19. The description of some of the policy challenges posed by globalization is based on A. Beviglia Zampetti and P. Sauvé, 'New Dimensions of Market Access: An Overview' in New Dimensions of Market Access in a Globalising World Economy (Paris: OECD 1995), 13-22; see also Globalisation of Industry (Paris: OECD 1996).
20. The description of some of the policy challenges posed by globalization is based on A. Beviglia Zampetti and P. Sauvé, 'New Dimensions of Market Access: An Overview' in New Dimensions of Market Access in a Globalising World Economy (Paris: OECD 1995), 13-22; see also Globalisation of Industry (Paris: OECD 1996).
21. For a comprehensive depiction of MNE networking strategies, see UNCTAD, World Investment Report - 1993: Transnational Corporations and Integrated International Production (New York: United Nations 1993).
22. The concept of 'shallow' as opposed to 'deep' integration has been put forward by Lawrence and Litan, 'The World Trading System after the Uruguay Round', 8 Boston Univ Int'l LJ (1990), 247 et seq.
23. For instance, in the 1989 US forklift anti-dumping case, the ITC was confronted with the problem of ascertaining the US origin of the forklifts manufactured by the plaintiff which sourced, as the respondent, many of its components from producers around the world. The Japanese respondent even used US components. The ITC ultimately determined the product origin by the country where the frame, amounting to about 25 percent of the forklift's total value, is manufactured. Quite similarly the nationality of company may create uncertainties. In another US anti-dumping case the plaintiff Brother Industries (USA), a US-based subsidiary of Brother Industries (Japan), alleged material injury and threat thereof by reason of less than fair value imports of portable electric typewriters from Singapore, the respondent being Smith-Corona (Singapore), a Singapore-based subsidiary of Smith-Corona (USA). No material injury to a US industry was found. The following remarks by the ITC's Acting Chairperson are still quite telling: 'The final investigation may reveal that [Smith-Corona (Singapore)] has enough productive activity in the US going toward the production of its typewriters assembled in Singapore that it must be included as part of the domestic industry ⋯ and it may well be that the same product can be an import for the Customs Service, foreign merchandise for the Department of Commerce, and part of domestic production for our like-product and domestic-industry determinations. [Moreover] it is not unusual for the Commission to conclude that assembly of US-made components in a foreign country does not remove a manufacturer from the domestic industry.' See USITC, Portable Electric Typewriters from Singapore (USITC Publication 2388, June 1991).
24. See S. Ostry, 'Priorities for Subie Bay and Singapore' in Road Map for APEC and WTO: Business Priorities and Policy Leadership, Trade Policy Forum IX (Singapore: Pacific Economic Cooperation Council 1996), 38-45.
25. For a treatment of the functional, transaction-cost theory of institutions, see R. Keohane, After Hegemony (Princeton, NJ: Princeton University Press 1984). See also D. Snidal, 'Political Economy and International Institutions', 16 Int'l Rev of Law and Economics 121-37 (1996).
26. For a treatment of the functional, transaction-cost theory of institutions, see R. Keohane, After Hegemony (Princeton, NJ: Princeton University Press 1984). See also D. Snidal, 'Political Economy and International Institutions', 16 Int'l Rev of Law and Economics 121-37 (1996).
27. Agreements on tariffs would require comparatively less institutional support. Tariffs are in fact fairly transparent, so that breaches of a tariff agreement can be easily detected and compensatory measures adopted.
28. While the WTO carried forward those GATT instruments that were plurilateral in character (in the areas of bovine meat, dairy products, civil aircraft, and government procurement), it is notable that GATS negotiations carried out since the conclusion of the Uruguay Round in specific sectors (financial services, basic telecommunications) have been plurilateral in nature. Given that the GATS revolves around the core general obligation of MFN treatment, the plurilateral character of agreements reached in both the above sectors raises an interesting set policy and legal questions.
29. This is quite evident from the fact that majoritarian principles of decision-making in the WTO are still rather symbolic. See J. Jackson, 'The World Trade Organization: Watershed Innovation or Cautious Small Step Forward?' in The World Economy - Global Trade Policy 1995 (Oxford: Blackwell 1995), 11-32.
30. When countries enter into an agreement, as is the case for persons entering into a contract, and bind themselves to do or not do something, they suffer a limitation in their autonomy. Such limitation increases when the agreement is part of a system with pre-existing obligations, reinforced by a specific organization entrusted with the task of facilitating 'the implementation, administration and operation' of such agreements. See Marrakesh Agreement, Article III.1 (Functions of the WTO).
31. If policy objectives across countries are totally opposed, the issue will not be deemed suitable for any international negotiation and the issue of the level of governance will not present itself.
32. Similar problems, in a regional context, occurred during and after the negotiation of the NAFTA and its two side agreements. The different value which is attached to losses of autonomuy across polities and policy domains influences the perceived worth of any international (and institutional) solutions and help explain the degree of opposition against them.
33. See, for instance, Ian M. Destler, American Trade Politics, 3d edn (Washington, DC: Institute for International Economics with the Twentieth Century Fund 1995).
34. An interesting catalogue, albeit not exhaustive, of issues that countries wished to see discussed in the WTO framework can be compiled from the various ministerial statements pronounced at the Marrakesh Conference. In his concluding remarks Sergio Abreu Bonila, Minister of Foreign Affairs of Uruguay and Chairman of the Trade Negotiations Committee, summarized them as 'requests for an examination of the relationship between the trading system and internationally recognized labour standards, the relation between immigration policies and international trade, trade and competition policy, including rules on export financing and restrictive business practices, trade and investment, regionalism, the interaction between trade policies and policies relating to financial and monetary matters, including debt, and commodity matters, international trade and company law, the establishment of a mechanism for compensation for the erosion of preferences, the link between trade development, political stability and the alleviation of poverty, and unilateral or extraterritorial measures.' See GATT doc MTN.TNC/MIN(94)/6, 15 April 1994.
35. See Marrakesh Agreement Establishing the World Trade Organization, preamble.
36. See T. J. Schoenbaum, 'Trade and the Environment: Time for a Reconciliation?', Paper presented at the Research Centre for International Law, University of Cambridge, 8 November 1996, and the University of Tokyo, 26 November 1996. See also D. C. Esty and D. Geradin, 'Trade and Environmental Protection in Regional Trade Agreements: The European Community and NAFTA', in P. Demaret, J.-F. Bellis, and G. Garcia Jimenez, Regionalism and Multilateralism After the Uruguay Round: Convergence, Divergence and Interaction', European Services No 12 (Brussels: European University Press 1997), 541-85.
37. See T. J. Schoenbaum, 'Trade and the Environment: Time for a Reconciliation?', Paper presented at the Research Centre for International Law, University of Cambridge, 8 November 1996, and the University of Tokyo, 26 November 1996. See also D. C. Esty and D. Geradin, 'Trade and Environmental Protection in Regional Trade Agreements: The European Community and NAFTA', in P. Demaret, J.-F. Bellis, and G. Garcia Jimenez, Regionalism and Multilateralism After the Uruguay Round: Convergence, Divergence and Interaction', European Services No 12 (Brussels: European University Press 1997), 541-85.
38. For a comprehensive treatment of this issue, see OECD, Trade, Employment and Labour Standards: A Study of Core Workers' Rights and International Trade (Paris: OECD 1996). See also R. Z. Lawrence, Single World, Divided Nations (Washington, DC: Brookings Institute and OECD Development Centre 1996); D. Rodrik, 'Labor Standards in International Trade: Do They Matter and What Do We Do About Them?' in R. Z. Lawrence, D. Rodrik, and J. Whalley (eds), Emerging Agenda for Global Trade: High Stakes for Developing Countries, Policy Essay No 20 (Washington, DC: Overseas Development Council 1996), 35-79; V. Leary, 'Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US Laws)', in J. Bhagwati and R. Hudec (eds), Fair Trade and Harmonisation: Prerequisites for Free Trade (Cambridge, MA: The MIT Press 1996); Id, 'The WTO and the Social Clause: Post-Singapore', 8(1) European Journal of Int'l Law 118-22 (1997).
39. For a comprehensive treatment of this issue, see OECD, Trade, Employment and Labour Standards: A Study of Core Workers' Rights and International Trade (Paris: OECD 1996). See also R. Z. Lawrence, Single World, Divided Nations (Washington, DC: Brookings Institute and OECD Development Centre 1996); D. Rodrik, 'Labor Standards in International Trade: Do They Matter and What Do We Do About Them?' in R. Z. Lawrence, D. Rodrik, and J. Whalley (eds), Emerging Agenda for Global Trade: High Stakes for Developing Countries, Policy Essay No 20 (Washington, DC: Overseas Development Council 1996), 35-79; V. Leary, 'Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US Laws)', in J. Bhagwati and R. Hudec (eds), Fair Trade and Harmonisation: Prerequisites for Free Trade (Cambridge, MA: The MIT Press 1996); Id, 'The WTO and the Social Clause: Post-Singapore', 8(1) European Journal of Int'l Law 118-22 (1997).
40. For a comprehensive treatment of this issue, see OECD, Trade, Employment and Labour Standards: A Study of Core Workers' Rights and International Trade (Paris: OECD 1996). See also R. Z. Lawrence, Single World, Divided Nations (Washington, DC: Brookings Institute and OECD Development Centre 1996); D. Rodrik, 'Labor Standards in International Trade: Do They Matter and What Do We Do About Them?' in R. Z. Lawrence, D. Rodrik, and J. Whalley (eds), Emerging Agenda for Global Trade: High Stakes for Developing Countries, Policy Essay No 20 (Washington, DC: Overseas Development Council 1996), 35-79; V. Leary, 'Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US Laws)', in J. Bhagwati and R. Hudec (eds), Fair Trade and Harmonisation: Prerequisites for Free Trade (Cambridge, MA: The MIT Press 1996); Id, 'The WTO and the Social Clause: Post-Singapore', 8(1) European Journal of Int'l Law 118-22 (1997).
41. For a comprehensive treatment of this issue, see OECD, Trade, Employment and Labour Standards: A Study of Core Workers' Rights and International Trade (Paris: OECD 1996). See also R. Z. Lawrence, Single World, Divided Nations (Washington, DC: Brookings Institute and OECD Development Centre 1996); D. Rodrik, 'Labor Standards in International Trade: Do They Matter and What Do We Do About Them?' in R. Z. Lawrence, D. Rodrik, and J. Whalley (eds), Emerging Agenda for Global Trade: High Stakes for Developing Countries, Policy Essay No 20 (Washington, DC: Overseas Development Council 1996), 35-79; V. Leary, 'Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US Laws)', in J. Bhagwati and R. Hudec (eds), Fair Trade and Harmonisation: Prerequisites for Free Trade (Cambridge, MA: The MIT Press 1996); Id, 'The WTO and the Social Clause: Post-Singapore', 8(1) European Journal of Int'l Law 118-22 (1997).
42. For a comprehensive treatment of this issue, see OECD, Trade, Employment and Labour Standards: A Study of Core Workers' Rights and International Trade (Paris: OECD 1996). See also R. Z. Lawrence, Single World, Divided Nations (Washington, DC: Brookings Institute and OECD Development Centre 1996); D. Rodrik, 'Labor Standards in International Trade: Do They Matter and What Do We Do About Them?' in R. Z. Lawrence, D. Rodrik, and J. Whalley (eds), Emerging Agenda for Global Trade: High Stakes for Developing Countries, Policy Essay No 20 (Washington, DC: Overseas Development Council 1996), 35-79; V. Leary, 'Workers' Rights and International Trade: The Social Clause (GATT, ILO, NAFTA, US Laws)', in J. Bhagwati and R. Hudec (eds), Fair Trade and Harmonisation: Prerequisites for Free Trade (Cambridge, MA: The MIT Press 1996); Id, 'The WTO and the Social Clause: Post-Singapore', 8(1) European Journal of Int'l Law 118-22 (1997).
43. The trade-labour standards debate is also indicative of the difficulty of tucking on to the trading system newer and potentially very divisive issues at a time when the latter has developed a considerably stronger dispute settlement system (other examples could include bribery and corruption, attempts at circumscribing the scope of national security and public order exemptions under the WTO or of limiting the extraterritorial application of domestic legislation). Viewed in this light, it is perhaps less than fully surprising that a majority of countries consider the ILO and its soft enforcement mechanism as providing the most appropriate international setting in which to address this interface. On the issue of 'hard' versus 'soft' law, see M. Reisman and M. Wiedman, 'Contextual Imperatives of Dispute Resolution Mechanism. Some Hypotheses and Their Applications in the Uruguay Round and NAFTA', 29(3) Journal of World Trade 5-38 (1995).
44. See 'U.S. Proposes Interim WTO Procurement Deal to Combat Corruption', Inside U.S. Trade (vol 14(12) 22 March 1996) at 1, 29-31.
45. The UN General Assembly adopted in December 1996 a Declaration Against Corruption and Bribery in International Commercial Transactions. In both organizations, work had actually started much earlier with the UNGA adopting in 1975 a Resolution condemning all corrupt practices and requesting all governments to co-operate, and the ECOSOC preparing in 1979 an ambitious draft treaty, which was later bogged down in the squabble over the UN Code on Transnational Corporations. The OECD had already dealt with the issue in its 1976 Guidelines for Multinational Enterprises. Progress on this front can also be seen from the conclusion, under the Free Trade in the Americas Initiative, of the 1996 Inter-American Convention Against Corruption. Finally, the Council of Europe, the international financial institutions, and the International Chamber of Commerce are also doing work in this area.
46. It is difficult to calculate the costs of corruption because of the secrecy in which illicit payments are cast. Useful work is being done by the Berlin-based NGO Transparency-International. Rough estimates of the magnitude of corruption-related costs to the world economy are as high as several billion US dollars per year. See K. Meessen, 'Fighting Corruption Across the Border', in 18 Fordham Int'l LJ 1647-52 (1995); J. Brademas and F. Heimann, 'Tackling International Corruption. No Longer Taboo', Foreign Affairs (Sept/Oct 1998), at 17-21.
47. It is difficult to calculate the costs of corruption because of the secrecy in which illicit payments are cast. Useful work is being done by the Berlin-based NGO Transparency-International. Rough estimates of the magnitude of corruption-related costs to the world economy are as high as several billion US dollars per year. See K. Meessen, 'Fighting Corruption Across the Border', in 18 Fordham Int'l LJ 1647-52 (1995); J. Brademas and F. Heimann, 'Tackling International Corruption. No Longer Taboo', Foreign Affairs (Sept/Oct 1998), at 17-21.
48. The OECD has been conducting a great deal of work on the issues of the criminalization of foreign corrupt practices, which led to the 1994 recommendation and of tax deductibility of illicit payments, which led to the 1996 recommendation, The Convention signed by the OECD member states and by Argentina, Brazil, Bulgaria, Chile, and Slovakia now requires signatories to make bribery of foreign legislative, administrative, and judicial officials a criminal offence and to provide for strong penalties. See G. Sacerdoti, 'The 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions', 1 International Business Law Journal 3-18 (1999).
49. For a discussion in the US context, see A. Travers, 'Commercial Bribery and Antitrust Laws', in 40(4) Antitrust Bulletin 779-824 (1995).
50. See UNCTAD, World Investment Report 1996 - Investment, Trade and International Policy Arrangements (Geneva: United Nations Conference on Trade and Development 1996).
51. For a useful depiction of the 'regionalization' of competition policy disciplines in a trade policy context, see B. Hoekman, 'Preferential Trade Agreements' in R. Z. Lawrence (ed.), Brookings Trade forum 1998 (Washington, DC: Brookings Institution Press 1998), 299-334.
52. See 'Mercosur Countries Agree to Protocols on Safeguards and Competition Policy', Inside NAFTA (25 December 1996), at 1, 11.
53. The very poor prospects of replicating such an outcome in the WTO context is often viewed as indicative of the inherent limits of multilateral action on competition-related matters. Yet, it is worth recalling the failures on this front at both bilateral and regional levels in the Canada-United States Free Trade Agreement and the NAFTA, which underline the importance of political or bureaucratic will (or lack thereof) for policy change over the ability to carry it through at any specific level of governance.
54. Sec E. M. Graham and P. Sauvé, 'Toward a Rules-based Regime for Investment: Issues and Challenges' in P. Sauvé and D. Schwanen (eds), Investment Rules for the Global Economy: Enhancing Access to Markets, Policy Study 28 (Toronto: C. D. Howe Institute 1996), 100-146. See also T. W. Waelde, 'International Investment under the 1994 Energy Charter Treaty - Legal, Negotiating and Policy Implications for International Investors within Western and Commonwealth of Independent States/ Eastern European Countries', 29 Journal of World Trade 5-72 (October 1995); and M. Gestrin and A. M. Rugman, 'The NAFTA Investment Provisions: Prototype for Multilateral Investment Rules?', OECD, Market Access After the Uruguay Round: Investment, Competition and Technology Perspectives (Paris: Organization for Economic Co-operation and Development 1996).
55. Sec E. M. Graham and P. Sauvé, 'Toward a Rules-based Regime for Investment: Issues and Challenges' in P. Sauvé and D. Schwanen (eds), Investment Rules for the Global Economy: Enhancing Access to Markets, Policy Study 28 (Toronto: C. D. Howe Institute 1996), 100-146. See also T. W. Waelde, 'International Investment under the 1994 Energy Charter Treaty - Legal, Negotiating and Policy Implications for International Investors within Western and Commonwealth of Independent States/ Eastern European Countries', 29 Journal of World Trade 5-72 (October 1995); and M. Gestrin and A. M. Rugman, 'The NAFTA Investment Provisions: Prototype for Multilateral Investment Rules?', OECD, Market Access After the Uruguay Round: Investment, Competition and Technology Perspectives (Paris: Organization for Economic Co-operation and Development 1996).
56. Sec E. M. Graham and P. Sauvé, 'Toward a Rules-based Regime for Investment: Issues and Challenges' in P. Sauvé and D. Schwanen (eds), Investment Rules for the Global Economy: Enhancing Access to Markets, Policy Study 28 (Toronto: C. D. Howe Institute 1996), 100-146. See also T. W. Waelde, 'International Investment under the 1994 Energy Charter Treaty - Legal, Negotiating and Policy Implications for International Investors within Western and Commonwealth of Independent States/ Eastern European Countries', 29 Journal of World Trade 5-72 (October 1995); and M. Gestrin and A. M. Rugman, 'The NAFTA Investment Provisions: Prototype for Multilateral Investment Rules?', OECD, Market Access After the Uruguay Round: Investment, Competition and Technology Perspectives (Paris: Organization for Economic Co-operation and Development 1996).
57. See A. Sykes, Product Standards for Internationally Integrated Goods Markets (Washington, DC: The Brookings Institution 1995); OECD, Regulatory Reform and International Market Openness (Paris: Organization for Economic Co-operation and Development 1996); OECD, Regulatory Co-operation for an Interdependent World (Paris: Organization for Economic Co-operation and Development 1995); and P. Eeckhout, The European Internal Market and International Trade: A Legal Analysis (Oxford: Clarendon Press 1994).
58. See A. Sykes, Product Standards for Internationally Integrated Goods Markets (Washington, DC: The Brookings Institution 1995); OECD, Regulatory Reform and International Market Openness (Paris: Organization for Economic Co-operation and Development 1996); OECD, Regulatory Co-operation for an Interdependent World (Paris: Organization for Economic Co-operation and Development 1995); and P. Eeckhout, The European Internal Market and International Trade: A Legal Analysis (Oxford: Clarendon Press 1994).
59. See A. Sykes, Product Standards for Internationally Integrated Goods Markets (Washington, DC: The Brookings Institution 1995); OECD, Regulatory Reform and International Market Openness (Paris: Organization for Economic Co-operation and Development 1996); OECD, Regulatory Co-operation for an Interdependent World (Paris: Organization for Economic Co-operation and Development 1995); and P. Eeckhout, The European Internal Market and International Trade: A Legal Analysis (Oxford: Clarendon Press 1994).
60. See A. Sykes, Product Standards for Internationally Integrated Goods Markets (Washington, DC: The Brookings Institution 1995); OECD, Regulatory Reform and International Market Openness (Paris: Organization for Economic Co-operation and Development 1996); OECD, Regulatory Co-operation for an Interdependent World (Paris: Organization for Economic Co-operation and Development 1995); and P. Eeckhout, The European Internal Market and International Trade: A Legal Analysis (Oxford: Clarendon Press 1994).
61. See J. S. Wilson, Standards and APEC: An Action Agenda, Policy Analyses in International Economics No 42 (Washington, DC: Institute for International Economics 1995).
62. See in particular Article 2 and 5 of the TBT Agreement and VI and VII of the GATS.
63. See B. Hawk, Antitrust and Market Access: The Scope and Coverage of Competition Laws and Implications for Trade (Paris: Organization for Economic Co-operation and Development 1996).
64. See, for instance, Joel Klein, 'A Note of Caution with Respect to a WTO Agenda on Competition Policy', Paper presented at a Royal Institute of International Affairs Conference on International Business and the New Rules of Trade, London, 18 November 1996.
65. On the concept of international contestability of markets see R. Z. Lawrence, 'Towards Globally Contestable Markets' in Market Access after the Uruguay Round (Paris: OECD 1996); T. Schoenbaum, 'The Theory of Contestable Markets in International Trade - A Rationale for "Justifiable" Unilateralism to Combat Restrictive Business Practices?', 30 Journal of World Trade (June 1996), at 161 et seq; Id, 'The Concept of Market Contestability and the New Agenda of the Multilateral Trading System', ASIL Newsletter (March-May 1996); A. Beviglia Zampetti and P. Sauvé (1996) above, note 6; E. Graham and R. Z. Lawrence, 'Measuring the International Contestability of Markets', 30 Journal of World Trade 5-20 (October 1996).
66. On the concept of international contestability of markets see R. Z. Lawrence, 'Towards Globally Contestable Markets' in Market Access after the Uruguay Round (Paris: OECD 1996); T. Schoenbaum, 'The Theory of Contestable Markets in International Trade - A Rationale for "Justifiable" Unilateralism to Combat Restrictive Business Practices?', 30 Journal of World Trade (June 1996), at 161 et seq; Id, 'The Concept of Market Contestability and the New Agenda of the Multilateral Trading System', ASIL Newsletter (March-May 1996); A. Beviglia Zampetti and P. Sauvé (1996) above, note 6; E. Graham and R. Z. Lawrence, 'Measuring the International Contestability of Markets', 30 Journal of World Trade 5-20 (October 1996).
67. On the concept of international contestability of markets see R. Z. Lawrence, 'Towards Globally Contestable Markets' in Market Access after the Uruguay Round (Paris: OECD 1996); T. Schoenbaum, 'The Theory of Contestable Markets in International Trade - A Rationale for "Justifiable" Unilateralism to Combat Restrictive Business Practices?', 30 Journal of World Trade (June 1996), at 161 et seq; Id, 'The Concept of Market Contestability and the New Agenda of the Multilateral Trading System', ASIL Newsletter (March-May 1996); A. Beviglia Zampetti and P. Sauvé (1996) above, note 6; E. Graham and R. Z. Lawrence, 'Measuring the International Contestability of Markets', 30 Journal of World Trade 5-20 (October 1996).
68. On the concept of international contestability of markets see R. Z. Lawrence, 'Towards Globally Contestable Markets' in Market Access after the Uruguay Round (Paris: OECD 1996); T. Schoenbaum, 'The Theory of Contestable Markets in International Trade - A Rationale for "Justifiable" Unilateralism to Combat Restrictive Business Practices?', 30 Journal of World Trade (June 1996), at 161 et seq; Id, 'The Concept of Market Contestability and the New Agenda of the Multilateral Trading System', ASIL Newsletter (March-May 1996); A. Beviglia Zampetti and P. Sauvé (1996) above, note 6; E. Graham and R. Z. Lawrence, 'Measuring the International Contestability of Markets', 30 Journal of World Trade 5-20 (October 1996).
69. See G. Feketekuty and R. A. Rogowsky, 'The Scope, Implication and Economic Rationale of a Competition-Oriented Approach to Future Multilateral Trade Negotiations' in S. Arndt and C. Milner (eds), The World Economy - Global Trade Policy 1996 (Oxford: Blackwell 1996); see also. A. Beviglia Zampetti and P. Sauvé (1996) above, note 6.
70. The Financial Times columnist Martin Wolf described (in remarks delivered at a conference on 'Future Directions for the Multilateral Trading System', organized by the Australian Department of Foreign Affairs and International Trade, Brisbane, 22 February 1996) the 'new' trade agenda as consisting of two broad categories of issues: 'disasters' (environment and labour standards and bribery and corruption) and 'nuisances' (investment, competition policy, and domestic regulatory conduct).
71. See Barbara Fliess and Pierre Sauvé, 'Of Chips, Floppy Discs and Great Timing: An Assessment of the WTO Information Technology Agreement', Les Cahiers de l'IFRI, No 26 (Paris: Institut Français des Relations Internationales 1998).
72. See, for instance, Gary Hufbauer, 'The WTO and Regional Groups: Rules of Coexistence', Paper presented at a Conference on the Multilateral Trade Regime in the 21st Century: Structural Issues', Columbia Law School, 3-4 November 1995. Limited progress on trade remedies or government procurement in the context of both the 1987 Canada-US FTA and the NAFTA illustrate the fact that even regional settings can lack critical negotiating mass. What is more, in a number of 'sensitive' sectors (e.g. maritime or air transport, telecommunications, cultural industries), regional attempts at trade and investment regime liberalization have not on balance produced sizeable advances in market access opportunities over what has proven practicable at the multilateral level. See Michael Hart and Pierre Sauvé, 'Does Size Matter? Canadian Perspectives on the Development of Government Procurement Disciplines in North America' in B. Hoekman and P. C. Mavroidis (eds), Law and Policy in Public Purchasing: The WTO Government Procurement Agreement (Ann Arbor: University of Michigan Press 1997).
73. See, for instance, Gary Hufbauer, 'The WTO and Regional Groups: Rules of Coexistence', Paper presented at a Conference on the Multilateral Trade Regime in the 21st Century: Structural Issues', Columbia Law School, 3-4 November 1995. Limited progress on trade remedies or government procurement in the context of both the 1987 Canada-US FTA and the NAFTA illustrate the fact that even regional settings can lack critical negotiating mass. What is more, in a number of 'sensitive' sectors (e.g. maritime or air transport, telecommunications, cultural industries), regional attempts at trade and investment regime liberalization have not on balance produced sizeable advances in market access opportunities over what has proven practicable at the multilateral level. See Michael Hart and Pierre Sauvé, 'Does Size Matter? Canadian Perspectives on the Development of Government Procurement Disciplines in North America' in B. Hoekman and P. C. Mavroidis (eds), Law and Policy in Public Purchasing: The WTO Government Procurement Agreement (Ann Arbor: University of Michigan Press 1997).
74. It also fuels the belief, held perhaps most strongly in US trade policy circles, that the complexity of the trading system is such that comprehensive negotiating rounds (what Fred Bergsten has called the 'Grand Bargain') may no longer be needed, indeed may well be counterproductive, in a post-Uruguay Round Setting. See, for instance, 'WTO Ministerial Short on Results but Sets Stage for Future work', in Inside U.S. Trade (vol 15 no 2, 10 January 1996), at 15-16. See also C. Carlisle, 'Is the World Ready for Free Trade?', 75(6) Foreign Affairs 113-26 (November/ December 1996), and C. F. Bergsten, 'Globalizing Free Trade', 75(3) Foreign Affairs 105-20 (May/June 1996).
75. It also fuels the belief, held perhaps most strongly in US trade policy circles, that the complexity of the trading system is such that comprehensive negotiating rounds (what Fred Bergsten has called the 'Grand Bargain') may no longer be needed, indeed may well be counterproductive, in a post-Uruguay Round Setting. See, for instance, 'WTO Ministerial Short on Results but Sets Stage for Future work', in Inside U.S. Trade (vol 15 no 2, 10 January 1996), at 15-16. See also C. Carlisle, 'Is the World Ready for Free Trade?', 75(6) Foreign Affairs 113-26 (November/ December 1996), and C. F. Bergsten, 'Globalizing Free Trade', 75(3) Foreign Affairs 105-20 (May/June 1996).
76. It also fuels the belief, held perhaps most strongly in US trade policy circles, that the complexity of the trading system is such that comprehensive negotiating rounds (what Fred Bergsten has called the 'Grand Bargain') may no longer be needed, indeed may well be counterproductive, in a post-Uruguay Round Setting. See, for instance, 'WTO Ministerial Short on Results but Sets Stage for Future work', in Inside U.S. Trade (vol 15 no 2, 10 January 1996), at 15-16. See also C. Carlisle, 'Is the World Ready for Free Trade?', 75(6) Foreign Affairs 113-26 (November/ December 1996), and C. F. Bergsten, 'Globalizing Free Trade', 75(3) Foreign Affairs 105-20 (May/June 1996).
77. See P. Sauvé, 'A First Look at Investment in the Final Act of the Uruguay Round', 28(5) Journal of World Trade 5-16 (October 1994).
78. The disciplines that are envisaged in both areas for services will actually deepen what is an increasingly artificial divide between goods and services under the current WTO architecture.
79. Evidence of 'partial equilibrium' thinking may also be found in the refusal to allow for any cross-fertilization between anti-dumping and competition policies. See 'U.S., EU Say Anti-Dumping Laws Not Covered by WTO Competition Group', Inside U.S. Trade (vol 14 no 15, 20 December 1996), at 18.
80. Recourse to the 'not elsewhere classified' logic of GATT Article XXIII (Nullification or Impairment) to allege non-enforcement of national antitrust laws underscores the absence of a workable multilateral system for dealing with private restraints that violate basic antitrust rules and distort international trade in the process.
81. Both those found in the GATS framework itself and in provisions governing the liberalization of trade in basic telecommunications services (i.e. the pro-competitive regulatory safeguards).
82. For a review of existing competition-related disciplines already existing in the Marrakesh Agreement see E. U. Petersmann, 'International Competition Rules for the GATT-WTO World Trade and Legal System', 27 Journal of World Trade 35-86 (December 1993).
83. In particular, with regard to standards-and mutual recognition-related matters under the TBT and SPS Agreements and the GATS, see F. Roessler, 'Increasing Market Access under Regulatory Heterogeneity: The Strategies of the World Trade Organization', OECD, Regulatory Reform and International Market Openness (Paris: Organization for Economic Co-operation and Development 1996), 117-30. Flexibility should prove essential to multilateral rule-making responses on the trade-competition front, particularly as a large number of WTO Members still do not possess a competition regime.
84. In particular, with regard to standards-and mutual recognition-related matters under the TBT and SPS Agreements and the GATS, see F. Roessler, 'Increasing Market Access under Regulatory Heterogeneity: The Strategies of the World Trade Organization', OECD, Regulatory Reform and International Market Openness (Paris: Organization for Economic Co-operation and Development 1996), 117-30. Flexibility should prove essential to multilateral rule-making responses on the trade-competition front, particularly as a large number of WTO Members still do not possess a competition regime.
85. See S. Ostry, 'A New Regime for Foreign Direct Investment', Occasional Paper 53 (Washington, DC: The Group of Thirty 1997).
86. As with multilateral competition policy disciplines, the tale of the absent investment regime has a long history, one that starts with the failure to establish the International Trade Organization (ITO) at the end of the 1940s. The Havana Charter had proposed the inclusion of investment as well as trade provisions, though the former was quite limited in scope owing to fears of many countries, particularly developing ones, of foreign control over natural resources and strategic industries. See S. Ostry (1997), above, see also M. Hart, 'A Multilateral Agreement on Foreign Direct Investment: Why Now?' in P. Sauvé and D. Schwanen (eds) (1996), above, note 39, 36-99.
87. See Sir L. Brittan, 'Investment Liberalization: The Next Great Boost to the World Economy', 4(1) Transnational Corporations 1-10 (April 1995).
88. See R. Ruggiero (1996), 'Foreign Direct Investment and the Multilateral Trading System', 5(1) Transnational Corporations 1-8 (April 1996).
89. Traditionally limited to OECD countries, the last few years have seen a growing number of developing countries, particularly in South-East Asia, devote considerable resources to investment incentive schemes in technology-intensive industries. A desire to maintain and further such practices undoubtedly explains the [otherwise paradoxical] resistance shown by a number of emerging economies to some OECD countries' call for the launching of comprehensive negotiations on investment at the WTO. The emergence of a global community of investment incentive 'sinners' illustrates the fact that multilateral co-operation and bargaining probably offer the best - indeed perhaps the only - way out of a classical prisoner's dilemma configuration. See T. H. Moran, Foreign Direct Investment and Development: The New Policy Agenda for Developing Countries and Economies in Transition (Washington, DC: Institute for International Economics 1998).
90. See OECD, 'Recent Trends in Foreign Direct Investment', Financial Market Trends, no 70 (July 1998). Note, too, that the tendency of MNE affiliates to finance expansion with funds from host or third countries often serves to underestimate real levels of MNE investment activity contained in FDI figures that measure cross-border financing activity for balance of payments purposes only.
91. On the intractable political conundrum of free-riding under the MAI, see A. M. Wimmer, 'The Impact of the General Agreement on Trade in Services on the OECD Multilateral Agreement on Investment', 19(4) World Competition 109-20 (June 1996).
92. See D. Hay, 'Anticompetitive Practices, Market Access and Competition Policy in a Global Economy', and M. Janow, 'Public and Private Restraints That Limit Access to Markets' in OECD, Market Access After the Uruguay Round: Investment, Competition and Technology Perspectives (Paris: OECD 1996).
93. See D. Hay, 'Anticompetitive Practices, Market Access and Competition Policy in a Global Economy', and M. Janow, 'Public and Private Restraints That Limit Access to Markets' in OECD, Market Access After the Uruguay Round: Investment, Competition and Technology Perspectives (Paris: OECD 1996).
94. See Mark A. A. Warner, 'Private and Public Impediments to Market Presence: Exploring the Investment/Competition Nexus' in P. Sauvé and D. Schwanen (1996), above, note 39, 219-59.
95. The link between merger approvals and the conclusion of 'open skies' agreements is an interesting example.
96. See W. Fikentscher and U. Immenga (eds), Draft International Antitrust Code (Baden-Baden: 1995); and F. Scherer, Competition Policies for an Integrated World Economy (Washington, DC: Brookings Institution 1994).
97. See W. Fikentscher and U. Immenga (eds), Draft International Antitrust Code (Baden-Baden: 1995); and F. Scherer, Competition Policies for an Integrated World Economy (Washington, DC: Brookings Institution 1994).
98. The formidable challenge of incorporating competition policy into the WTO is further underlined by the fact that, while decreasing, the number of WTO Members which do not possess antitrust regimes is still large. Moreover, the competition laws of numerous developing and transition economies are of very recent vintage. This suggests that a 'culture' of antitrust enforcement has for most of these countries yet to take root in a credible manner.
99. This middle-ground approach bears some similarity to that chosen by the framers of both the 1951 Treaty of Paris establishing the European Coal and Steel Community and the 1957 Treaty of Rome setting up the European Economic Community. In order to create an integrated market (sectorally in the first instance), it was felt necessary in both cases to deal with anti-competitive practises directly at the same time as trade barriers were being phased out.
100. On subsidiarity in EC competition law enforcement, see P. Alford, 'Subsidiarity and Competition: Decentralised Enforcement of EU Competition Laws', Cornell Int'l LJ (1994), at 271 et seq. See also L. Idot, 'L'application du "principe de la subsidiarité" en droit de la concurrence' in Recueil Dalloz Sirey, 37 et seq.
101. On subsidiarity in EC competition law enforcement, see P. Alford, 'Subsidiarity and Competition: Decentralised Enforcement of EU Competition Laws', Cornell Int'l LJ (1994), at 271 et seq. See also L. Idot, 'L'application du "principe de la subsidiarité" en droit de la concurrence' in Recueil Dalloz Sirey, 37 et seq.
102. Appropriate conflict of laws rules will need to be devised to this effect. See A. Giardina and A. Beviglia Zampetti, 'Settling Competition-Related Disputes: The Arbitration Alternative in the WTO Framework', 31 Journal of World Trade (December 1997).
103. See UK Government, Free Trade and Foreign Policy: A Global Vision, White Paper, London: Foreign and Commonwealth Office and Department of Trade and Industry (November 1996). On trade barriers related to product standards and conformance see Commission of the European Communities (1996), Community External Trade Policy in the Field of Standards and Conformity Assessment, Communication from the Commission, COM(96) 564 final.
104. See UK Government, Free Trade and Foreign Policy: A Global Vision, White Paper, London: Foreign and Commonwealth Office and Department of Trade and Industry (November 1996). On trade barriers related to product standards and conformance see Commission of the European Communities (1996), Community External Trade Policy in the Field of Standards and Conformity Assessment, Communication from the Commission, COM(96) 564 final.
105. This is particularly true of services, where the GATT/WTO process has in many respects amounted to sector-specific negotiations on regulatory reform, investment, and competition policy.
106. 75 It bears noting that just as the different costs of regulatory heterogeneity will suggest different possibilities for remediation, so do the different reasons for regulatory heterogeneity suggest different responses in a trade policy context. Simply stated, there is both 'good' and 'bad' heterogeneity, the principle line is between heterogeneity that reflects honest differences in tastes, incomes, and related factors, and heterogeneity that reflects inadequate information or capture. See A. Sykes, 'Strategies for Increasing Market Access Under Regulatory Heterogeneity', Paper prepared for the OECD Trade Committee (Paris: OECD, 15 February (1996)).
107. See K. Nicolaidis, 'Regulatory Reform in a Global Economy', Paper
108. It is, indeed, often socially productive to respect differences in national preferences regarding regulatory policy. Where such preferences reflect differences in risk tolerance, incomes, culture or geography, regulatory heterogeneity is typically desirable, other things being equal.
109. In the EC context the mutual recognition principle, while introduced mainly through court decisions, has then found widespread application. In the NAFTA context, on the contrary, generally weak framework rules have led to a very limited use of the instrument.
110. See J. Mathis, 'Mutual Recognition Agreements - Transatlantic Parties and the Limits of Non-Tariff Barrier Regionalism in the WTO', 32(6) Journal of World Trade 5-31 (December 1998); A. Beviglia Zampetti, 'Mutual Recognition in the Transatlantic Context: Some Reflections on Future Negotiations', forthcoming as a chapter of P. Mavroidis and T. Cottier (eds), Regulatory Barriers and the Principle of Non Discrimination in World Trade Law: Past, Present and Future (University of Michigan Press); A. Beviglia Zampetti, 'Market Access through Mutual Recognition: The Promise and Limits of GATS Article VII' in P. Sauvé and R. M. Stern (eds), GATS 2000: New Issues in Services Trade Liberalization (The Brookings Institution 2000), 283-306).
111. See J. Mathis, 'Mutual Recognition Agreements - Transatlantic Parties and the Limits of Non-Tariff Barrier Regionalism in the WTO', 32(6) Journal of World Trade 5-31 (December 1998); A. Beviglia Zampetti, 'Mutual Recognition in the Transatlantic Context: Some Reflections on Future Negotiations', forthcoming as a chapter of P. Mavroidis and T. Cottier (eds), Regulatory Barriers and the Principle of Non Discrimination in World Trade Law: Past, Present and Future (University of Michigan Press); A. Beviglia Zampetti, 'Market Access through Mutual Recognition: The Promise and Limits of GATS Article VII' in P. Sauvé and R. M. Stern (eds), GATS 2000: New Issues in Services Trade Liberalization (The Brookings Institution 2000), 283-306).
112. See J. Mathis, 'Mutual Recognition Agreements - Transatlantic Parties and the Limits of Non-Tariff Barrier Regionalism in the WTO', 32(6) Journal of World Trade 5-31 (December 1998); A. Beviglia Zampetti, 'Mutual Recognition in the Transatlantic Context: Some Reflections on Future Negotiations', forthcoming as a chapter of P. Mavroidis and T. Cottier (eds), Regulatory Barriers and the Principle of Non Discrimination in World Trade Law: Past, Present and Future (University of Michigan Press); A. Beviglia Zampetti, 'Market Access through Mutual Recognition: The Promise and Limits of GATS Article VII' in P. Sauvé and R. M. Stern (eds), GATS 2000: New Issues in Services Trade Liberalization (The Brookings Institution 2000), 283-306).
113. A. Sykes (1996), above, note 75 at 15.
114. As mentioned, the provisions of the Agreement on Technical Barriers to Trade as well as of GATS Article VI (Domestic Regulation) are particularly pertinent in this regard.
115. An epistemic community groups people of different political affiliations, professions, or nationality, with expertise in a particular policy area, shared convictions, and a commitment to advancing their agenda through the policy formulation process, by raising policy makers' awareness of - and knowledge on - technically complex issues and proposing possible solutions. See P. Haas, 'Introduction: Epistemic Communities and International Policy Coordination', 46(1) International Organization 1-35 (1992).