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This chapter looks at the major sector‐specific agreements that have been negotiated under the auspices of GATT (General Agreement on Tariffs and Trade), and in particular at agriculture, and textiles and clothing. Both of these are sectors that have a long history of protectionism in many countries, and much remains to be done to lower barriers to trade to levels that approach the average prevailing in other sectors. Over time, both sectors were gradually removed from the GATT 1947 disciplines, and it was only during the Uruguay Round that they were re‐integrated into the trading system; the Uruguay Round agreements reached on the sectors are due to be fully implemented in 2005. The chapter also discusses the Information Technology Agreement (ITA), which was negotiated amongst a subset of WTO members during 1996, although it is applied on an MFN (most favoured nation) basis. The sections of the chapter are as follows: Agriculture; Textiles and clothing; The Information Technology Agreement; and Conclusion.

This chapter considers some of the controversial issues addressed by different arbitral tribunals concerning the application of most favoured nation (MFN) clauses to dispute settlement. It begins with a brief discussion on the concept, origin, and purpose of MFN clauses. It then discusses the application of MFN clauses to dispute settlement.

This chapter examines the historical developments and underpinnings of the most-favoured-nation (MFN) clause in bilateral investment treaties (BIT). It analyses different versions of the MFN clause found in BITs of major players in the field and discusses topical arbitration awards. It attempts to categorize the existing awards and opinions relating to the proper application of MFN clauses in investment agreements and discusses open issues relating to MFN clauses.

This chapter studies closely the ISDS claims brought against India. A careful analysis shows the following: First, cases like White Industries v. India and Devas Multimedia v. India expose the broad and vague language of Indian BITs. Second and equally important is the fact that these cases show that none of the claims have been brought against India because India exercised her sovereign public power in good faith in order to attain an important public policy goal such as protection of the environment or promotion of public health etc. All these claims have arisen against India mainly due to bad regulation. Third, these ISDS claims also show the failure of the organs of the Indian State to be sufficiently sensitive to India’s BIT obligations. Fourth, a closer study of these cases especially of the cases brought by Vodafone and Cairn energy shows India’s hostile attitude towards ISDS.

In 2017, the jurisprudence of ICSID tribunals and ad hoc committees largely followed established lines. The jurisdictional decisions in Koch v. Venezuela and Bridgestone v. Panama evidenced that in spite of the lowered standards under the Salini-light test investment tribunals are still concerned about including normal sales transactions under the scope of investment agreements. They have similarly grappled with avoiding to fully open up their ratione personae jurisdiction to state-owned companies. On substantive issues, the tribunal in Bear Creek Mining v. Peru found an indirect (and unlawful) expropriation, whereas the tribunal in Eiser v. Spain held that the fundamental change of the regulatory regime in renewable energy violated the host state’s obligations under the Energy Charter Treaty’s fair and equitable treatment obligation. Various ICSID tribunals in the renewable energy cases against the Czech Republic, Italy and Spain, dealt with the stability and predictability obligations of host states under the FET standard in light of regulatory changes. The annulment committee in Suez v. Argentina (II) confirmed its limited power of reviewing ICSID awards.

Ever since 1957, the European Treaties made, with regard to goods, a fundamental distinction between regulatory and fiscal barriers to intra-Union trade. Fiscal barriers were here subject to a special constitutional regime. This constitutional regime was however not uniform and itself distinguished between (external) customs duties and (internal) taxes with both aspects being firmly rooted in an international model. Has this changed over the course of the past sixty years? Have the Treaty provisions on fiscal barriers been ‘federalized’and, if so, are they nonetheless subject to distinct doctrinal principles (like in the United States)? This final chapter explores these complex questions. Section I starts with an analysis of the legal structure of the customs union; Section II looks at the question from the point of ‘internal taxation’, and here in particular the question of double taxation.

Regime theory and policy precedents are used to propose a strategy for international governance reform. Bargaining issues tied to international “coordination” and “cooperation” are contrasted, suggesting a strategy to link coordination and cooperation mechanisms to reduce policy frictions. A regime design that relies on achieving a minimum baseline of authoritative international agreements mixing “soft” and “hard” government commitments is proposed. Soft rules are binding on governments, creating specific policy capabilities, not narrowly defining solutions. These baseline agreements reinforce confidence in good-faith conduct by countries while setting parameters that reduce divergence among varied national policies to achieve quasi-convergence of national policies. Governance, not policy, is the focus because private innovations by industry and civil society must complement government decisions and rules. Incorporating expert multistakeholder organizations from civil society into governance is needed to implement a strategy that stresses experimentation and flexibility in response to rapidly changing technological and economic circumstances.

This chapter examines the nature and application of the most-favored nation (MFN) principle under the WTO Agreement on Government Procurement (GPA), and the General Agreement on Trade in Services (GATS), with specific reference to RTAs with procurement market access commitments. Under the GPA, the MFN principle is based on strict reciprocity and a conditional MFN requirement. Furthermore, any access to procurement markets for services is conditioned and constrained by GATS schedules and by the application of the MFN principle operating within the GATS. The chapter questions whether the WTO legal framework and method of negotiating procurement provisions works against the wider objectives of the WTO. It tests this hypothesis by examining the procurement commitments set out in selected RTAs signed between GPA parties, between a GPA party and non-GPA party, and those signed between non-GPA parties.

In 2016, the jurisprudence of ICSID tribunals and ad hoc committees largely followed established lines. However, two jurisdictional decisions evidenced that the Salini test seems to have been almost eviscerated. The use of the GATS MFN clause to access investment arbitration was rejected in Menzies and forged documents led to the inadmissibility of investment claims in Churchill Mining. The Philip Morris case addressed core issues of host state regulatory measures and investment protection standards. Several cases clarified the role of compensation as a legality requirement for expropriation, while others made the due diligence standard states owe under full protection and security more precise and one tribunal held that an investor could not even import more favourable substantive standards under the applicable MFN clause. Two annulment committees ruled on the impartiality and independence of arbitrators and the issue of “surprise arguments.”

Beijing was dismayed to find the United States newly unconstrained by the USSR and in a position of unparalleled global dominance. The US linkage of China’s MFN status and human rights presented a grave challenge. Beijing overcame it by hard-line rejection of US demands, mobilization of the US business community, and strategically targeted concessions. Beijing also demonstrated its willingness to cooperate on issues of common concern—Cambodia and Korea—thereby demonstrating to Washington the importance of positive relations with China. Beijing built a strategic partnership with Russia, securing its rear for protracted struggle with the United States. The US role in defeating Beijing’s bid to host the 2000 International Olympic Games and the US interception of a Chinese merchant vessel on the high seas generated spontaneous eruptions of nationalism. By the mid-1990s, a new, popular, and partially autonomous strain of anti-US nationalism had emerged.

The New Deal liberalism that FCN treaties sought to project onto the world was defined by basic rule-of-law principles found in the U.S. Constitution and by the free enterprise system. The United States was seeking in its treaties to obtain for U.S. investors abroad the same protection that foreign investors already received in the United States, and thus the treaties did not provide greater rights than those granted by U.S. law and policy. In general, the treaties sought non-discriminatory (national and MFN) treatment for investment, security for investment against expropriation, a guarantee that regulations of investment would be reasonable, and due process for investors—all reflected in an overall requirement of fair and equitable treatment. The treaties also pervasively recognized the legitimate power of host states to regulate investment, subject to these basic principles. This chapter explains the meaning of each of the investment-related provisions in the treaties.

John Kamm is an advocate for improved rights for political and religious prisoners in China, based on a philosophy of finding common ground rather than lecturing or shaming Chinese officials on their failings. He heads the Dui Hua Foundation, which will accept any case for review so long as the charges do not involve violence. Kamm left a successful career in business during the 1990s and was effective as a human rights activist partly because of his support for Most Favored Nation trading status with the PRC, which gave him credibility with the Chinese. However, China’s turn in an authoritarian direction under Xi Jinping, including the repression of minorities in Tibet and Xinjiang, has made hope for a convergence of values between China and the West more problematic.

In 2015, the jurisprudence of International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc committees largely followed established lines. However, the awards on jurisdiction in the Poštová banka and the Ping An cases evidenced very restrictive approaches to what is required in order to uphold jurisdiction over ICSID claims. On the substance of claims, the tribunals in Tidewater and in Quiborax reaffirmed the legality requirements of expropriations, a string of cases clarified the contours of the fair and equitable treatment standard, while the ad hoc committees in the Daimler and the Kılıç cases continued to diverge on the scope of most-favoured nation (MFN) clauses.

A study of European Union (EU) customs law is, in large measure, a study of achievement. The EU’s customs union has been described as ‘one of the most successful examples of European integration and European policy. It has served as a stable foundation for economic integration and growth in Europe for over four decades.’ The success of the Community in establishing a customs union ahead of schedule, on 1 July 1968 and deepening the union subsequently, may now be overshadowed by the more far-reaching achievements and controversies surrounding the European Monetary Union (EMU) and the area of freedom, security, and justice. The fact, though, that the European project has advanced a long way in more recent times, notwithstanding the enormous difficulties following the financial crisis which emerged in 2007, should not be allowed to disguise the truths that the European Economic Community was, as the Treaty of Rome, Article 9 said, ‘based upon a customs union’ and that without a successful economic community there would have been no European Community or European Union.