Maintaining the WTO's supremacy in the international trade order: A proposal to refine and revise the role of the trade policy review mechanism

Journal of International Economic Law

Volumn 16, Issue 1, 2013, Pages 9-36

  Chaisse, Julien ^a   Matsushita, Mitsuo ^b  

^a CHINESE UNIVERSITY OF HONG KONG   (Hong Kong)

^b UNIVERSITY OF TOKYO   (Japan)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84875133230     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgs043     Document Type: Review

References (136)

1. In May 2011, Richard Baldwin and Simon Evenett edited a collection of essays which warned that 2011 was the do-or-die year (see Richard Baldwin and Simon Evenett, Why World Leaders Must Resist the False Promise of another Doha Delay (Geneva: Centre for Economic Policy Research, 2011) 106).
2. As a matter of fact, US Congressional politics is likely to be much rougher after the 2012 presidential election while the 18th Communist Party Congress has chosen Xi Jinping to be President of China who cannot start off by making what can be viewed as major unilateral concessions to the USA.
3. See Jean-Pierre Cabestan, 'China's Relations with the Major Powers: The United States, European Union and Russian Federation', in David Shambaugh (ed.), Charting China's Future: Domestic and International Challenges (London: Routledge, 2011) 77-86.
4. Instead, the meeting concluded with a Chair's Summary composed of: (1) 'Elements for Political Guidance' statement previously prepared by the WTO General Council (which functions as the highest decision-making body in between Ministerial meetings);
5. and (2) the Chair's factual summary of the proceedings.
6. Rashid S. Kaukab, 'To Have Or Not to Have a Round: WTO at Crossroads', 10 (9) Trade Negotiations Insights, available at http://ictsd.org/i/news/tni/ 121380.
7. The 'trade community' itself has difficulties in naming the main problems and providing some solutions.
8. See, Patrick Messerlin and Erik Van Der Marel, Polly wants a Doha Deal: What Does the Trade Community Think?', 10 (4) World Trade Review 551 (2011), at 551-56.
9. The 'single undertaking' principle practised by the WTO does not permit the conclusion and implementation of partial agreements.
10. All negotiations must, therefore, end in a single final agreement covering all the subjects. In such a situation, an agreement on agriculture is entirely dependent on the advancement of negotiations on the protection of geographical indications and access to markets for industrial goods. It is, therefore, understandable that these negotiations, which are already highly complex, have also been very difficult at the political level.
11. See, Matthew Kennedy, 'Two Single Undertakings-Can The WTO Implement the Results of a Round?', 14 Journal of International Economic Law 77 (2011), at 77.
12. WTO is at a disadvantage because all its decisions have to be taken by consensus which paralyses the progress of negotiations. On one hand, it is indisputable that consensus is by its very nature democratic and has an integral role to play as every member can, theoretically, oppose any proposition that comes up for discussion. On the other hand, the strategic aspect of consensus is very significant, especially during major trade negotiations.
13. Thus, the need for consensus also detracts from WTO's efficacy as a single government can paralyse the decision-making mechanism. It is a fact that since the Seattle Ministerial Conference the pace of multilateral negotiations organized by WTO has slowed down considerably. Because it encourages some members to adopt bilateral or regional solutions and this approach appears to pose a question mark on the future of the multilateral trade system.
14. More specifically, China, India, Brazil, Russia, and South Africa have emerged as great trading powers and they have formed a group representing developing countries to assert their position vis-à-vis developed countries as represented by the USA and the European Union (EU).
15. A 'Green Room' style of negotiation in which a few developed countries decide the basic trade policies and persuade other countries, including developing countries, to accept is no longer working anymore and, thus, a new decision-making process in WTO is needed. See Bryan Mercurio, The WTO and Its Institutional Impediments', 8 Melbourne Journal of International Law 198 (2007), at 212 and footnote No. 74.
16. Bryan Mercurio, 'Reflections on the WTO and the Prospects for its Future', 10 Melbourne Journal of International Law 49 (2009), at 49-57.
17. Chin Leng Lim, Deborah Elms, and Patrick Low (eds), The Trans-Pacific Partnership (TPP) Trade Agreement (London: Cambridge University Press, 2012) 352.
18. Ernesto Zedillo said in 2006: '[I] believe that very soon the relevant question will be, not how can the WTO save the Doha Round but rather how can the WTO be saved from the Doha Round.'
19. See, The WTO's Biggest Problem at 10: Surviving the Doha Round, Address at Columbia University Conference, WTO at 10: Governance, Dispute Settlement and Developing Countries (7 April 2006).
20. For instance, in early 2009 the USA has announced that a 'Buy America' policy would be applied to purchases by enterprises if they have accepted financial assistance from the government.
21. Gary Hufbauer and Jeffrey J. Schott, 'Buy American: Bad for Jobs, Worse for Reputation, Peterson Institute for Economics', (2009) Policy Brief No. Pb09-2, pp. 1-11.
22. This kind of policy has triggered some other countries to follow. India has decided to increase tariffs on steel products and bean oil products.
23. And the Philippines' introduction of export licensing system of iron ores as well as China's export controls on bauxite and zinc are also good examples.
24. Argentina, a member of G20, has adopted an imports policy has already triggered a strong joint declaration from 40 WTO Members last March during the meeting of the WTO GoodsCouncil's . Argentina.
25. The claim is focused in the non-automatic licenses and other measures the Argentine Government applies to the imports.
26. See, WTO, Council for the trade of goods meeting, document G/C/W/667 (and Argentina's reply), G/C/W/668, 30 March 2012.
27. Pascal Lamy, Director-General, World Trade Org., The Values of the Multilateral Trading System, Address before the Lowy Institute (discussing in part the necessity of the WTO's trade policy review mechanism in warding off protectionism), http://www.wto.org/english/news-e/sppl-e/sppl117-e.htm (visited 29 October 2012).
28. Trade Policy Review Body, Annual Report by the Director General: Overview of Developments in the International Trading Environment, WT/TPR/OV/13 (24 November 2010);
29. Trade Policy Review Body, Report to the TPRB from the Director-General on Trade-Related Developments, WT/TPR/OV/W/3 (14 June 2010);
30. Trade Policy Review Body, Annual Report by the Director General: Overview of Developments in the International Trading Environment, WT/TPR/OV/12 (18 November 2009).
31. Bernard Hoekman, 'Proposals for WTO Reform: A Synthesis and Assessment', 20 Minnesota Journal of International Law 324 (2011), at 357.
32. For a historical perspective, see Arunabha Ghosh, 'Developing Countries in the WTO Trade Policy Review Mechanism', 9 World Trade Review 419 (2010), at 419.
33. Annex 3 of the Marrakesh Agreement states that the objectives of the TPRM are 'to contribute to improved adherence by all Members to rules, disciplines and commitments made under the Multilateral Trade Agreements and, where applicable, the Plurilateral Trade Agreements, and hence to the smoother functioning of the multilateral trading system, by achieving greater transparency in, and understanding of, the trade policies and practices of Members'. TPRM, Marrakesh Agreement Establishing the World Trade Organization, Annex 3, 1869 U.N.T.S. 480 (1994).
34. A connection can be established between the TPRM and future trade disputes, See, Julien Chaisse and Debashis Chakraborty, 'Implementing World Trade Organization Rules through Negotiation and Sanction,' 28 (1) Pennsylvania Journal of International Economic Law 153 (2007), at 153-86
35. Janet Martinez, 'An Analytic Framework for Dispute Systems Design', 14 Harvard Negotiation Law Review 123 (2009), at 160.
36. Some authors note that the TPRM 'might be another suitable forum in which developing countries can raise issues regarding possible distortions in trade', see Amir H. Khoury, 'A Neoconventional Trademark Regime for 'Newcomer' States', 12 University of Pennsylvania Law Review 531 (2010), at 404.
37. See also, Ghosh, above n 14, 419.
38. The main virtue of the TPRM lies in its contribution to the transparency of national trade policies. See, Joseph François, 'Maximizing the Benefits of the Trade Policy Review Mechanism for Developing Countries', in Bernard Hoekman and Will Martin (eds), Developing Countries and the World Trade Organization (London: John Wiley & Sons 2001) 147-66
39. and Bernard Hoekman, 'Proposals for WTO Reform: A Synthesis and Assessment', 20 Minnesota Journal of International Law 324 (2011), at 356.
40. For details of the WTO Members reviewed (1989-2011), see Trade Policy Review Body-Trade Policy Review Mechanism-Report of the Trade Policy Review Body for 2012, WT/TPR/306, 23/11/2012, Annex 1.
41. Daniel K. Tarullo, 'Norms and Institutions in Global Competition Policy, 94 American Journal of International Law 478 (2000).
42. Julien Chaisse, Debashis Chakraborty, and Jaydeep Mukherjee, 'Emerging Sovereign Wealth Funds in the Making-Assessing the Economic Feasibility and Regulatory Strategies', 45(4) Journal of World Trade 837 (2011), 837-76.
43. See Aaditya Mattoo and Arvind Subramanian, 'Currency Undervaluation and Sovereign Wealth Funds: A New Role for the WTO', Working paper No. 08-2 Peterson Institute for International Economics.
44. International Working Group on Sovereign Wealth Funds, Sovereign Wealth Funds-Generally Accepted Principles and Practices-'Santiago Principles' (2008).
45. Paul Rose, 'Sovereign Wealth Fund Investment in the Shadow of Regulation and Politics', 40 Georgetown Journal of International Law 1247 (2009), at 1214.
46. The members have agreed that funds should disclose their sources of funding and the conditions under which their owners can withdraw them.
47. They have agreed to make disclosures as applicable under local laws and regulations. The legal framework basically reflects the 'concern that SWFs be both predictable and accountable with respect to both domestic and recipient country regulators'. (See, Rose, ibid, at 1215).
48. Of key significance in this regard are Principles 11, 12, and 22. Furthermore, sovereign fund managers should be independent of the fund owners, but fully accountable, publishing annual reports and undergoing annual audits.
49. To address criticism among some economists that the funds' secrecy contributes to volatility in capital markets, the principles call for funds to disclose 'relevant financialinformation' to 'contribute to stability in international financial markets and enhance trust in recipient countries'. (International Working Group on Sovereign Wealth Funds, above n 23).
50. Each fund's investment policies should be made public, including the extent to which it employs outside managers.
51. As the International Working Group of Sovereign Wealth Funds (IWG) noted in its release of the Principles, 'The GAPP is a voluntary set of principles and practices that the members of the IWG support and either have implemented or aspire to implement.
52. The GAPP denotes general practices and principles, which are potentially achievable by countries at all levels of economic development. The GAPP is subject to provisions of intergovernmental agreements, and legal and regulatory requirements.
53. Thus, the implementation of each principle of the GAPP is subject to applicable home country laws.' See International Working Group on Sovereign Wealth Funds, above n 23.
54. See, Julien Chaisse, 'The Regulation of Sovereign Wealth Funds in the European Union', in Karl P. Sauvant and Lisa Sachs (eds), Sovereign Investment: Concerns and Policy Reactions (New York: Oxford University Press, 2012) 462-95.
55. Available at http://www.adia.ae/ADIA-AE-press.asp (visited 29 October 2012).
56. See Joseph J. Norton, 'The "Santiago Principles" for Sovereign Wealth Funds: A Case Study on International Financial Standard-Setting Processes', 13 Journal of International Economic Law 645 (2010), at 648-51.
57. See ICN website 'The ICN Factsheet and Key Messages' at http://www.international competitionnetwork.org/about.aspx (Accessed 30 December 2012).
58. For a detailed presentation, see, Pierre-Hugues Verdier, 'Transnational Regulatory Networks and Their Limits', 34 Yale Journal of International Law 113 (2009).
59. The ICN is unique as it is the only international body devoted exclusively to competition law enforcement and its members represent national and multinational competition authorities.
60. Members produce work products through their involvement in flexible project-oriented and results-based working groups.
61. Working group members work together largely by Internet, telephone, and webinars.
62. See Anu Piilola, 'Assessing Theories of Global Governance: A Case Study of International Antitrust Regulation', 39 Stanford Journal of International Law 207 (2003), at 215-16;
63. Hugh M. Hollman and William E. Kovacic, 'The International Competition Network: Its Past, Current And Future', 20 Minnesota Journal of International Law 274 (2011) 274.
64. See Notification and Procedures Subgroup of the Mergers Working Group, Report on the Costs and Burdens of Multijurisdictional Merger Review, Address at the International Competition Network First Annual Conference, Napoli, Italy (28-29 September 2002) (surveying prior studies on the issue of costs and burdens associated with multi-jurisdictional merger reviews and recommending measures to eliminate unnecessary costs), at http://www. internationalcompetitionnetwork.org/costburd.doc (29 October 2012).
65. See James S. Venit and William J. Kolasky, 'Substantive Convergence and Procedural Dissonance in Merger Review', in Simon J. Evenett, Alexander Lehmann, Benn Steil (editors)Antitrust Goes Global: What Future for Transatlantic Cooperation? (Washington, D.C.: Brookings Institution Press, 2000), at 79.
66. See International Competition Network, Guiding Principles and Recommended Practices for Merger Notification and Review, at http://www. internationalcompetitionnetwork.org/guiding principles.html (visited 29 October 2012).
67. See Douglas F. Broder and Leta McCollough, 'USA: Antitrust Enforcement-US House of Representatives', 24 (12) European competition Law Review 24 (2003), at 217-18.
68. See Merger Working Group, Int'l Competition Network, Recommended Practices For Merger Notification and Review Procedures (2005), available at http://www.internationalcompetition network.org/uploads/library/doc588.pdf (visited 29 October 2012).
69. See J. William Rowley and A. Neil Campbell, 'Implementation of the International Competition Network's Recommended Practices for Merger Notification Procedures: Final Report', 5 Business Law International 110 (2004), at 111-12.
70. Daniel Sokol, 'Antitrust, Institutions, and Merger Control', 17 George Mason Law Review 1055 (2010).
71. See, Verdier, above n 31, at 113.
72. The ICN N&P Recommended Practices are cited in legislative history as a rationale for change, in countries such as Germany; in press releases announcing changes (e.g. as in Australia and by the European Commission);
73. and in comments from members, bar associations, and other groups supporting change in ICN member jurisdictions like Brazil and India;
74. as well as by other multilateral organizations, such as the OECD and UNCTAD. For example, in 2009, Germany introduced a second threshold for domestic turnover that brought its law more into line with ICN practice, concerning the nexus of the reviewing jurisdiction. More specifically, German law now states that undertakings contemplating a merger must only undergo merger review, if at least two parties to the transaction exceed specified volumes of domestic turnover.
75. See also, Verdier, above n 31, at 113.
76. Donald Keesing, Improving Trade Policy Review in the World Trade Organisation (Washington: Peterson Institute for Economics, Policy Analyses in International Economics Vol. 52, 1998) 26-33.
77. See Joseph François, above n 17.
78. The reports are important sources of information not only on the trade regime but also on the legal and economic conditions in the country under examination.
79. The frequency of review depends on the trading entities' shares of world trade. The four with the greatest share (presently the USA, the EC, Japan, and Canada) are reviewed every two years, the next 16 every four years and others every six years.
80. Moreover, the TPRB carries out an annual overview of developments in the international trading environment that have an impact on the multilateral trading system. These overviews provide a welcome opportunity for a general stocktaking by WTO members of current trends in international trade policy.
81. The frequency of the reviews depends on the members' share of world trade at the time of the Uruguay negotiations. While the Annex mandates that the four members with the largest share of world trade in the early nineties (the EU, the USA, Japan, and Canada) be reviewed every two years;
82. the next 16 members be reviewed every four years;
83. and others be reviewed every six years, a longer period may be fixed for least-developed members.
84. The idea is to carry on a regular review of the import polices of major import destinations in order to ensure minimum trade diversion. See Hoekman, above n 13, at 324.
85. A paper analyzed the relationship between the findings of the TPRM and the outcome of cases lodged at the DSB. The analysis used an empirical method involving five countries (two developing countries-Brazil and India-and three developed countries-the European Community ('EC'), Japan and the USA).
86. The paper showed that many issues raised by the TPRM of selected members have been successfully challenged at the WTO, as a result of which areas of concern have been rectified in the subsequent period. See Chaisse and Chakraborty, above n 16, at 153-86.
87. Hoekman, above n 13, at 357.
88. See e.g. Agreement on Safeguards Art. 12, 1 June 1995, U.N.T.S (Vol. 1869), at 159 (1995) (discussing 'notification and consultation');
89. Agreement on Subsidies and Countervailing Measures Art. 25, 1 June 1995, U.N.T.S. (Vol. 1869), at 40 (1995) (explaining 'notifications').
90. Matsushita Mitsuo, Mavroidis Petros, and Schoenbaum Thomas, The World Trade Organization-Law, Practice, and Policy (Oxford: Oxford University Press, 2006).
91. Ministerial Conference of 30 November-3 December 1999, at para 3.
92. Even if a link can be established between litigation and policy review as the 'parties should engage in more dialogue, and communicate about the root issues of their dispute through various institutionalized avenues under the WTO, such as consultations, the SPS committee, and other peer review forums, e.g. the Trade Policy Review Mechanism (TPRM)'.
93. See, Sungjoon Cho, 'From Control to Communication: Science, Philosophy, and World Trade Law', 44 Cornell International Law Journal 249 (2011), at 272.
94. Ministerial Conference, above n 52.
95. Trade Policy Review Body-Trade Policy Review Mechanism-Report of the Trade Policy Review Body for 2009, WT/TPR/249, 29/10/2009.
96. Hoekman, above n 13, at 356.
97. Brendan Sweeney, 'International Competition Law and Policy: A Work in Progress', 10 Melbourne Journal of International Law 1 58 (2009).
98. WTO's recent failures bring to mind the setbacks suffered by the GATT whose rules could not be amended from 1948 to 1994 due to a lack of consensus among the contracting parties. So nothing has really changed: during the Tokyo Round, some countries were obliged to go ahead on their own and conclude multilateral agreements (the Tokyo 'Codes') which were binding only on consenting countries.
99. During the last round of GATT negotiations, after four years of talks, Arthur Dunkel got the idea of creating a new organization to break the deadlock and impose the negotiated regulations: this meant that countries had to accept the entire package to become members of the Organization. Resorting to such imposed solutions is no longer considered acceptable in the case of an institution that has become truly global.
100. Neither is it possible to set up a new WTO. It is therefore necessary to reform it or to rethink it.
101. For example, the USA was the only country to hold up the settlement of the dispute concerning the access to pharmaceuticals (paragraph 6 of Doha Declaration) for almost nine months.
102. Steve Charnovitz, 'Addressing Government Failure through International Financial Law', 13 (3) Journal of International Economic Law 743 (2010), at 743-61.
103. As stated by Lester and Mercurio, many of the so-called FTAs favour certain countries in trade relations and are basically discriminatory rather than 'free trade'. The term PTA encompasses many different kinds of bilateral and regional trade agreements and underscores their common denominator, which is to establish preferences for the signatories over others in trade relations.
104. See Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements-Commentary and Analysis (Cambridge: Cambridge University Press, 2009), at 4-5.
105. See UNCTAD (2011) World Investment Report 2011-Non-Equity Modes of International Production and Development, New York and Geneva (UNCTAD/WIR/2011) 26 July 2011.
106. While the USA started negotiations with other regional groups in 2003, the European Community refrained from doing so at the instigation of Pascal Lamy. As a matter of fact, no agreement of this kind was negotiated after 1999 in order to send a clear message that only a multilateral framework would serve as a reference.
107. See Simon Lester, Bryan Mercurio, and Arwel Davies, 'World Trade Law: Text, Materials and Commentary' 330-33 (Oxford: Hart Publishing, 2012).
108. Sophie Meunier, Trading Voices: The European Union in International Commercial Negotiations (Princeton: Princeton University Press, 2007) 240.
109. Jagdish Bhagwati, Termites in the Trading System: How Preferential Agreements Undermine Free Trade (Oxford: Oxford University Press, 2008);
110. Bryan Mercurio, 'Should Australia Continue Negotiating Bilateral Free Trade Agreements?: A Practical Analysis', 27 University of New South Wales Law Journal 667 (2004).
111. See e.g. United Nations, Economic and Social Commission for Asia and the Pacific. Meeting the Challenges in an Era of Globalization by Strengthening Regional Development Cooperation (New York: Unites Nations Publications, 2004), at 24.
112. Such as the adoption, under free-trade agreements, of terms in the multilateral Agreement on Public Markets (APM) (mainly concerning the principles of national and non-discriminatory treatment);
113. or even treatment under the above agreement of 'new issues for regulation' not yet covered at the multilateral level like investment, protection of geographical indications and competition.
114. Richard Baldwin, 'Multilateralising Regionalism: Spaghetti Bowls as Building Blocs on the Path to Global Free Trade', 29 (11) The World Economy 1451 (2006), at 1451-518.
115. Frederic Abbott, 'A New Dominant Trade Species Emerges: Is Bilateralism a Threat?', 10 (3) Journal of International Economic Law 571 (2007), at 571-83.
116. Richard Pomfret, 'Is Regionalism an Increasing Feature of the World Economy?,' 30 (6) The World Economy 923 (2007), at 942.
117. Likewise, Bryan Mercurio's analysis demonstrates the reticence of Asia in embracing regional integration.
118. He reached this conclusion by evaluating the scope and coverage in a broad range of 16 intra-Asian RTAs, with commitments in goods contrasted with that of other sectors, namely services, intellectual property and government procurement.
119. Too often, intra-Asian RTAs exclude or only marginally include these and other economically important sectors within the scope of the agreements.
120. Moreover, liberalization commitments in the goods sector are also sometimes lacking depth, with Sensitive and Highly Sensitive Lists and liberalization pullbacks providing protection to domestic markets.
121. Bryan Mercurio, 'Bilateral and Regional Trade Agreements in Asia: A Sceptic's View', in Ross Buckley, Richard Hu, and Douglas Arner (eds), East Asian Economic Integration: Law, Trade and Finance (Cheltenham: Edward Elgar, 2011).
122. See Nicholas Lockhart and Andrew Mitchell, 'Legal Requirements for FTAs under the WTO', in Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: Commentary and Analysis (Cambridge: Cambridge University Press, 2009).
123. On the landmark Turkey-Textiles case and the nature of the hierarchy that arises when a WTO violation is defended by the MFN exception possible in a WTO regional trade agreement, see Warren H. Maruyama, 'A Race to the Bottom?: A Symposium on Preferential Trade Agreements and Discrimination in International Trade', 46 Stanford Journal Of International Law 177 (2010), at 181 and 186.
124. Steve Charnovitz, 'The WTO's Environmental Progress', 10 (3) Journal of International Economic Law 685 (2007), at 685-706.
125. See Lavanya Rajamani, 'The Cancun Climate Agreements: Reading the Text, Subtext and Tea Leaves', 60 (2) International and Comparative Law Quarterly 499 (2011), at 499-519.
126. Anne-Marie Slaughter has characterized the evolving concept of sovereignty by comparing Westphalian sovereignty with a redefined sovereignty where governments cooperate with one another through international networks and institutions to accomplish what they once could only hope to accomplish alone within a defined territory.
127. Anne-Marie Slaughter, 'Sovereignty and Power in a Networked World Order', 40 Stanford Journal of International Law 283 (2004).
128. Under the Westphalian system established in 1648, international law was conceived as a law of coordination between sovereign powers as opposed to domestic law, which was a law of subordination (See, Thomas Cottier, 'The Prospects of 21st Century Constitutionalism', in T. Cottier (ed.), The Challenge of WTO Law: Collected Essays (London: Cameron May, 2007) 415-16).
129. Harold Koh, 'Transnational Legal Process Illuminated', in Michael Likosky (ed.), Transnational Legal Processes-Globalisation and Power Disparities (Law in Context Series) (London: Butterworths, 2002) 327-32.
130. See also, Daniel Kalderimis, 'Is Transnational Law Eclipsing International Law', in Pieter Bekker et al. (eds), Making Transnational Law Work in the Global Economy (London: Cambridge University Press, 2010) 93-131.
131. See, Paul Schiff Berman, 'From International Law to Law and Globalization', 43 Columbia Journal of Transnational Law 485 (2005), at 484-556.
132. Different standards and disciplines are beginning to be exerted over foreign investments. See, for instance, on the definition of 'fair and equitable treatment' or 'expropriation', Julien Chaisse, 'Promises and Pitfalls of the European Union Policy on Foreign Investment-How Will the New EU Competence on FDI Affect the Emerging Global Regime?', 15 (1) Journal of International Economic Law 51 (2012), at 51-84.
133. According to the United Nations Conference on Trade and Development (UNCTAD) studies and statistics, the network of International Investment Agreements has been expanding considerably over the past decade;
134. in 2011 to almost 3,000 BITs, whereas fewer than 400 BITs existed at the end of the 1990s. See UNCTAD (2010) World Investment Report 2010 (UNCTAD/WIR/2010) 22 July, at 81.
135. See, e.g. 'Brazil Sounds New Warning of 'Currency War" 16(9) Bridges Weekly Trade News Digest (7 March 2012), available at http://ictsd.org/i/news/ bridgesweekly/127884/.
136. On the difficulties of enforcing rules against currency manipulation at both the IMF and WTO, see Bryan Mercurio and Celine Sze Ning Leung, 'Is China a 'Currency Manipulator'?: The Legitimacy of China's Exchange Regime Under the Current International Legal Framework', 43 International Lawyer 1257 (2009), at 1257.