6. Emerging Powers and International Trade Law

See most notably: Hudec (2010).

For the exception see: Ismail (2015).

It must be noted that GATT 1947 never formally entered into force but was applied on a provisional basis (see: Protocol of Provisional Application of the GATT (30 October 1947) 55 UNTS 308) which is why formally the term ‘Member States’ is not completely correct here. However, for matters of simplification and in line with terms used by States and officials these terms are adopted nonetheless.

See on ISI policies in the context of international trade law in the respective countries, on Brazil: Holanda Barbosa (1998); Bulmer-Thomas (2014), p. 296 et seqq.; on India see e.g.: Chimni (2010), p. 165; Shaffer et al. (2015), p. 602 et seqq.

See on Brazil: Abreu (1999), p. 2 (“Until 1990 restrictions based on balance of payments became the rule and Brazil’s almost permanent status was that of a country invoking Article XVIII:B of the General Agreement.”); India even after its accession to the WTO agreements sought to apply trade restrictions on balance-of-payments grounds which however were successfully legally challenged by the US in 1997, see: India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, Report of the Panel (6 April 1999) and India-Quantitive Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, Report of the Appellate Body (23 August 1999).

See Sect. 3.​2.​3.

See for a summary of several Brazilian proposals: Abreu (1999), p. 2 et seqq.

Ismail (2015), p. 82 et seqq.

Ismail (2015), chapters 5 and 6 and p. 149 et seqq.

Brink (2005), p. 21 available at: http://​nrfnexus.​nrf.​ac.​za/​handle/​20.​500.​11892/​178229.

Ismail (2015), p. 152.

See: WTO Committee on Balance-of-Payments Restrictions Report on the 1995 Consultation with the Republic of South Africa, WP/BOP/R/1 BOP/R/224 (15 June 1995), para. 5 and 6.

For a comprehensive empirical overview, see: Ismail (2015), chapter 5, 6, and 7.

See: Ismail (2015).

Michalopoulos (2014), p. 34; Rolland (2012), p. 89 et seqq.

See on the connection also: Rolland (2012), p. 74.

During the GATT Tokyo Round (1973–1979) the US had already unsuccessfully sought to open the negotiation mandate for investment rules and continued this effort with a comprehensive proposal in the lead-up to the Punta del Este GATT Ministerial Meeting in March 1986, see e.g. Kurtz (2002), p. 722.

Rolland (2012), p. 74; see on Brazil’s negotiation position also: Abreu (1999), p. 4.

See: Ministerial Declaration on the Uruguay Round (20 September 1986), p. 5 (Textiles and clothing), p. 6 (Agriculture), p. 8 (Trade-related investment measures), p. 10 (Negotiations on trade in services).

See on India’s initial position e.g.: Standards and Principles Concerning the Availability Scope and Use of Trade-Related Intellectual Property Rights: Communication from India, Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, MTN.GNG/NG11/W/37 (10 July 1989), para. 1–4.

Ostry (2008).

Stiglitz and Charlton (2005), p. 49; Sylvia Ostry called the outcome a “bum deal”, see: Ostry (2009), p. 105.

Cf. Michalopoulos (2014), p. 36.

See for the level of bound tariffs: Trade Policy Review of India, Report by the WTO Secretariat, WT/TPR/S/313 (28 April 2015), p. 39.

See with reference to the example of TRIPS: Abbott (1989); Watal (2001), p. 19; Sell (2003), p. 96 et seqq.

Starting in the early 1970s international economic studies strongly questioned the effectiveness of infant industry protection. According to these studies, infant industry protection created disincentives to export and led to ineffective and non-competitive industries. Moreover, import-substitution policies and accompanied inefficiencies arguably led to increased vulnerability of developing economies to external shocks. Further, it was concluded by international economists that the use of fiscal and monetary measures was superior to trade and exchange controls when addressing external imbalances. As the former was not seen to lead to misallocation costs associated with trade restrictions, the rationale for trade restrictions to address balance-of payments difficulties became more and more questionable. For a summary and further references, see: Michalopoulos (2014), p. 33 et seqq.

GDP figures for Brazil are based on the World Bank’s database, which is available at: https://​data.​worldbank.​org; See for a brief overview also Shaffer et al. (2008), p. 394 et seq.

See e.g. Sikkink (1991), p. 7 et seqq.

Shaffer et al. (2008), p. 397 with further references.

See e.g. Gilpin (2001), p. 269 et seq.; Shaffer et al. (2008), p. 397.

Bayard and Elliot (1994), p. 355 et seqq.

Sinha (2016), p. 8 et seq.; Shaffer et al. (2015), p. 603.

Cf. Shaffer et al. (2015), p. 604.

See for a comprehensive account of India’s economic reforms in the early 1990s: Joshi and Little (1996).

For a critical perspective, see e.g.: Chimni (2010), p. 168 et seq.

See: Shaffer et al. (2015), p. 604 et seqq. with reference to interviews with high-level Indian officials of the time.

Cf. Ismail (2015), p. 178.

Ismail (2015), p. 168 et seqq.

Hirsch (2005), p. 128; Ismail (2015), p. 171.

See e.g. Yanai (2013), p. 80 et seqq.

See: Protocol of Provisional Application of the GATT, 30 October 1947, 55 UNTS 308, para. 1.

The telegram containing the withdrawal can be found in: Communication from Secretary-General of United Nations Regarding China, GATT/CP/54 (8 March 1950).

See for a summary e.g.: Hsiao (1994), p. 434 et seqq.

See on these reforms and their historical context e.g. Reardon (2014).

See for an overview of the pre-reform foreign trade system in China: Lardy (2010), pp. 16–36.

Feng (2012).

See on political battles within the Chinese Communist Party: Reardon (2014), p. 167 et seqq. and 181 et seqq.

For an insider’s perspective, see: Li (2010). For further analysis, see: Lardy (2010), pp. 37–82.

China’s Status as a Contracting Party, Communication from the People’s Republic of China, GATT Doc. L/6017 (14 July 1986).

Working Party on China’s Status as a Contracting Party, GATT Doc. L/6191 (19 July 1987).

For a summary of the work of the Working Party, see: Bhala (2000), p. 1481 et seqq.

Feinerman (1992), p. 25; see also: Hsiao (1994), p. 435 and Feinerman (1996).

Hsiao (1994), p. 435.

Feinerman (1992), p. 25; Hsiao (1994), p. 435 with further references.

See for an in detail overview of further negotiations and in particular the bilateral agreement reached with the US in November 1999: Bhala (2000), pp. 1487–1528.

For a summary and critique see e.g.: Ya Qin (2003).

Rolland (2012), p. 89 et seqq.; Michalopoulos (2014), p. xix; Hopewell (2016), p. 71.

See e.g. Ostry (2008), p. 287; Hopewell (2016), p. 70 et seq.

Steiner (2008), p. 355; Rolland (2012), p. 90; Hopewell (2016), p. 77 et seqq.

Rolland (2012), p. 90.

See e.g. Summers (2001).

Brazil for example pointed out that it fully accepts and enforces core labour standards but that developed economies should not use the protection of such standards as a “scapegoat to deal with the problem of structural unemployment in the developed economies”, see: Brazil, Statement by H.E. Mr. Luiz Felipe Lampreia, Minister for External Relations, WT/MIN(96)/ST/8 (9 December 1996); see also: Brazil Statement by H.E. Mr. Fernando Henrique Cardoso, President, WT/FIFTY/H/ST/7 (19 May 1998), para. 6–7; see on labour standards as a disguised form of protectionism also: India Statement by H.E. Mr. S. Narayanan, Ambassador, Permanent Representative, WT/GC(95)/ST/11 (30 January 1996); less sceptical but still highlighting the danger of misuse: South Africa Statement by H.E. Mr. Nelson Mandela, President, WT/FIFTY/H/ST/13 (19 May 1998); for a scholarly work supporting these arguments, see: Summers (2001), p. 69 et seqq.

See: ICTSD (1999).

Rolland (2012), p. 92 with reference to a number of newspapers reports.

Then WTO Director-General Mike Moore reportedly told his officials: “We’ve got to get this fuckin‘ show back on the road. And no way are we going to be seen as just bumbling along with the fuckin’ built-in agenda. We’ve got to re-brand.” Cited in: Blustein (2009), p. 82.

Hopewell (2016), p. 75.

See: Rolland (2012), p. 91.

Doha WTO Ministerial 2001, Ministerial Declaration, WT/MIN(01)/DEC/1 (14 November 2001), para. 12–44.

Trebilcock et al. (2013), p. 615.

Chen and Chen (2010), p. 93.

See e.g.: Bellmann (2014), para. 1 et seq.

Azevêdo R World Back in WTO, Speech Delivered at the 9th WTO Ministerial Conference, Bali (7 December 2013). https://​www.​wto.​org/​english/​news_​e/​news13_​e/​mc9sum_​07dec13_​e.​htm#dg.

The Bali Ministerial Declaration, WT/MIN(13)/DEC (7 December 2013).

‘Agreement on Trade Facilitation’, Ministerial Decision, WT/MIN(13)/36, WT/L/911 (7 December 2013); for a revised version see: ‘Protocol Amending the Marrakesh Agreement Establishing the World Trade Organization’, General Council Decision, WT/L/940 (of November 2014). The agreement’s overall purpose is to reduce the cost of trading by facilitating customs procedures, reducing red tape, and by enhancing efficiency and transparency. The agreement has entered into force in 2017.

Bellmann (2014), para. 15. Notably, the TFA contains a number of provisions on support for developing countries which however are phrased rather vaguely, see e.g.: Article 21 on financial and other assistance (“shall endeavor”).

ICTSD (2015b).

See: ICTSD (2015b).

In more detail on agriculture below C. II.

An overview of the Nairobi Package’s Content is available at: https://​www.​wto.​org/​english/​thewto_​e/​minist_​e/​mc10_​e/​nairobipackage_​e.​htm.

ICTSD (2015b).

Joint Ministerial Statement on DDA from African Group, China, Ecuador, India and Venezuela, WT/MIN(15)/19 (15 December 2015).

A summary of the outcomes of the conference is available online but a common declaration is missing, see: https://​www.​wto.​org/​english/​thewto_​e/​minist_​e/​mc11_​e/​mc11_​e.​htm.

See e.g.: Vickers (2012), p. 254 et seqq.; Hopewell (2016), p. 77 et seqq.

Hopewell (2016), p. 79.

ICTSD (2008b).

See also: Hopewell (2016), p. 79, with references to supportive statements by trade negotiators and officials from the WTO Secretariat.

Efstathopoulos (2012), p. 283; Hopewell (2016), p. 78.

See e.g. Rolland (2012), p. 96; for an exemplary analysis of differing developing country positions in the early stages of the DDR, see: Bjørnskov and Lind (2002).

Bello (2006).

G-20 Ministerial Communiqué, Communication from Brazil, WT/L/559 (23 December 2003).

Efstathopoulos (2012), p. 283.

Vickers (2012), p. 269.

Lim and Wang (2010), p. 1317; Liang (2013), p. 224.

See: Hurrell and Narlikar (2006), p. 420.

See on the involvement of ICONE and Brazil’s approach to agriculture negotiations more broadly: Hopewell (2016), p. 114 et seqq.

Hopewell (2016), p. 83.

ICTSD (2008e).

ICTSD (2008e).

See e.g.: Smith (2008).

Hopewell (2016), p. 108.

Liang (2013), p. 227.

See: Lim and Wang (2010), p. 1310; Liang (2013), p. 227.

Statement by Brazil’s Minister of Foreign Relations Celso Amorim, issued alongside with India’s Minister for Commerce and Industry Kamal Nath, cited in: ICTSD (2008a); Vickers (2012), p. 263.

Chen and Chen (2010), p. 93.

See e.g. statements by US Trade Representative Susan Schwab, in: Smith (2008); see also Hopewell (2016), p. 95 (based on interviews with US trade officials).

Bhala (2009), p. 109 et seqq.; Blustein (2009), pp. 283–284.

See e.g. interview by US Ambassador to the WTO Michael Punkte, cited in: Tu (2013), p. 167.

See also: Pearson (2007), p. 643 et seq.; Tu (2013), p. 172 with further references.

Cited in: Tu (2013), p. 172.

Zeng and Liang (2013), p. 7.

Gao (2007), p. 70.

Tu (2013), p. 168.

See on those points also: Hopewell (2016), p. 94.

Hopewell (2016), p. 94.

See also: Vickers (2012), p. 260.

Article 15 d) of the Chinese Accession Protocol states that: “In any event, the provisions of subparagraph (a)(ii) shall expire 15 years after the date of accession.”, see: Protocol on the Accession of the Peoples Republic of China, WT/L/432 (23 November 2001).

Article 16 (“Transitional Product-Specific Safeguard Mechanism”) of the Protocol on the Accession of the Peoples Republic of China, WT/L/432 (23 November 2001).

Tu (2013), p. 178 et seqq.

Tu (2013), p. 80.

Tu (2013), p. 180.

See the interviews with Chinese officials cited in: Hopewell (2016), p. 95.

Chen (2010), p. 57.

Zeng and Liang (2013), p. 14.

Canada-Measures Affecting the Sale of Gold Coins, GATT Doc. L/5863, Report of the Panel (17 September 1985); for an overview of (low) usage by African States of GATT dispute settlement: Mosoti (2006), p. 439.

For an overview, see: Shaffer et al. (2015), p. 603.

All numbers are taken from: Shaffer et al. (2008), p. 405 and Annex 1.

For example the EEC/EC was a respondent in 27 cases (and there are a number of further cases involving individual EEC/EC Member States) and the US in 38 cases. For a list of all GATT 1947 cases in which panel reports were issued, see: https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​gt47ds_​e.​htm.

See for an analysis of African participation in the WTO’s dispute settlement system: Apecu Laker (2014), p. 218 et seqq.

Daku and Pelc (2017).

Daku and Pelc (2017), p. 250.

The initial case concerned Brazil’s subsidies to the Brazilian aircraft manufacturer, Embraer, which were challenged by Canada, but soon led Brazil to bring its own cases to challenge Canada’s support to Bombardier on behalf of Embraer; among the numerous decisions rendered in this high-profile trade dispute, see: Brazil—Export Financing Programme for Aircraft, WT/DS46, Panel Report (14 April 1999); Brazil—Export Financing Programme for Aircraft, WT/DS46/AB/R, Appellate Body Report (2 August 1999); Canada—Measures Affecting the Export of Civilian Aircraft-AB-1999-2, WT/DS70/AB/R, Appellate Body Report (2 August 1999); Canada—Measures Affecting the Export of Civilian Aircraft, WT/DS70/R, Panel Report (14 August 1999); Canada—Measures Affecting the Export of Civilian Aircraft-Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/RW, Panel Report (9 Mai 2000); Canada—Measures Affecting the Export of Civilian Aircraft-Recourse by Brazil to Article 21.5 of the DSU-AB-2000-4, 4 WT/DS70/AB/RW, Appellate Body Report (21 July 2000).

See: Shaffer et al. (2008), p. 417. Although the case was not directly connected to HIV, Brazil managed to frame it that way and thereby garnered support by many NGOs and other civil society actors including in the US.

Shaffer et al. (2008), p. 417 et seqq.

United States—Subsidies on Upland Cotton, WT/DS267/AB/R, Report of the Appellate Boy (20 December 2004); United States—Subsidies on Upland Cotton, WT/DS267/R, Report of the Panel (8 September 2004).

European Communities—Export Subsidies on Sugar, WT/DS266/AB/R, Report of the Appellate Body (28 April 2005); European Communities—Export Subsidies on Sugar, WT/DS/266/R, Report of the Panel (15 October 2004).

Shaffer et al. (2008), p. 422.

Hopewell (2016), p. 105.

Shaffer et al. (2008), p. 413.

See most notably: India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, Report of the Appellate Body, WT/DS90/AB/R (23 August 1999); India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, Report of the Panel (6 April 1999). In the case the US successfully challenged a huge number of long standing Indian quantitative trade restrictions that had been justified by India under balance-of-payment exceptions. Another important case lost that had implications for India’s industrial policies was: India—Measures Affecting the Automotive Sector, WT/DS146/AB/R; WT/DS175/AB/R, Appellate Body Report (19 March 2002). See for extensive analysis of cases involving India, the collected papers in: Das and Nedumpara (2016).

Shaffer et al. (2015), p. 606.

Shaffer et al. (2015), p. 617.

European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/R, Panel Report (adopted as modified by the Appellate Body Report on 20 April 2004).

The case was heavily criticised by Indian scholars both for its legal arguments but also for the fact that support for the local solar panel industry is seen as a legitimate interest for India to improve its industrial capacity and its sustainable development, see e.g. Jayagovind (2016).

United States—Certain Measures Relating to the Renewable Energy Sector, WT/DS510/2, Request for the establishment of a panel by India (24 January 2017) (The Panel was composed on 24 April 2018).

Rolland and Trubek (2019), pp. 6, 46, 150.

Shaffer and Gao (2018), p. 120.

Shaffer and Gao (2018), p. 135.

See: Shaffer and Gao (2018), p. 135, see also Table 6.1 above.

Lim and Wang (2010), p. 1324 with further references.

United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R, Appellate Body Report (11 March 2011); European Communities—Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, Appellate Body Report (15 July 2011); United States—Countervailing Duty Measures on Certain Products from China, WT/DS437/AB/R, Appellate Body Report (18 December 2014); United States—Countervailing and Anti-Dumping Measures on Certain Products from China, WT/DS449/AB/R, Appellate Body Report (7 July 2014); European Communities—Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WTDS397/AB/RW, Appellate Body Report (18 January 2016).

Shaffer and Gao (2018), p. 128.

Shaffer and Gao (2018), p. 176 et seqq.

See e.g.: Office of the United States Trade Representative USTR Statement Regarding WTO Appellate Body Report in Countervailing Duty Dispute with China (March 2011). https://​ustr.​gov/​about-us/​policy-offices/​press-office/​press-releases/​2011/​march/​ustr-statement-regarding-wto-appellate-body-report-c. Accessed 11 September 2020 (United States Trade Representative Ron Kirk was cited as follows: “I am deeply troubled by this report […] It appears to be a clear case of overreaching by the Appellate Body.”); see also: Statements by the United States at the March 25, 2011 DSB Meeting. https://​geneva.​usmission.​gov/​2011/​03/​28/​mar-25-2011-dsb-meeting/​.

Cf. Shaffer and Gao (2018), p. 132 et seq., 176.

China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, Report of the Panel (26 January 2009).

China—Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R; WT/DS395/AB/R; WT/DS398/AB/R, Reports of the Appellate Body (30 January 2012).

China—Measures Related to the Exportation of Rare Earths, WT/DS431/AB/R; WT/DS432/AB/R; WT/DS433/AB/R, Reports of the Appellate Body (7 August 2014).

Shaffer and Gao (2018), p. 171.

Cited in: Shaffer and Gao (2018), p. 171.

See: United States—Measures Related to Price Comparison Methodologies, WT/DS515 and European Union—Measures Related to Price Comparison Methodologies, WT/DS516.

See for more details and examples: Shaffer and Gao (2018), p. 177.

Protocol on the Accession of the Peoples Republic of China, WT/L/432 (23 November 2001).

See on the WTO incompatibility of reformed EU Anti-Dumping methodology: Tietje and Sacher (2018); see on the illegality of the US approach and a critical analysis of US legal arguments: Charnovitz (12 April, 2018); see also: Cornelis (2007) and Rao (2013).

European Union—Measures Related to Price Comparison Methodologies, WT/DS516/13, Communication from the Panel (17 June 2019).

Brink (2007), p. 21; see also: Brink (2010).

See: Brink (2007), p. 25 et seq. who also proposes several measures to improve capacity.

Cf. Narlikar and Tussie (2016), p. 213.

Narlikar and Tussie (2016), p. 213.

Brazil Statement by H.E. Mr. Fernando Henrique Cardoso, President, WT/FIFTY/H/ST/7 (19 May 1998), para. 19.

Brazil Statement by H.E. Mr. Fernando Henrique Cardoso, President, WT/FIFTY/H/ST/7 (19 May 1998), para. 20.

Brazil Statement by H.E. Mr. Luiz Felipe Lampreia Minister of Foreign Relations, WT/MIN(99)/ST/5 (1 December 1999).

India Statement by H.E. Mr. Murasoli Maran Minister of Commerce and Industry, WT/MIN(99)/ST/16 (30 November 1999).

South Africa Statement by H.E. Mr. Alec Erwin Minister of Trade and Industry, WT/MIN(96)/ST/114 (12 December 1996).

South Africa Statement by H.E. Mr. Alec Erwin Minister of Trade and Industry, WT/MIN(99)/ST/45 (1 December 1999).

South Africa Statement by H.E. Mr. Alec Erwin Minister of Trade and Industry, WT/MIN(99)/ST/45 (1 December 1999).

China Statement by Mr. Long Yongtu, Assistant Minister of Foreign Trade and Economic Cooperation, WT/MIN(96)/ST/117 (12 December 1996), p. 3.

China Statement by Mr. Long Yongtu, Assistant Minister of Foreign Trade and Economic Cooperation, WT/MIN(96)/ST/117 (12 December 1996), p. 2 and 4.

China Statement by H.E. Mr. Shi Guangsheng, Minister of Foreign Trade and Economic Cooperation, WT/MIN(99)/ST/108 (2 December 1999).

South Africa Statement by H.E. Mr. Alexander Erwin, MP Minister of Trade and Industry, WT/MIN(01)/ST/7 (10 November 2001).

See e.g. South Africa Statement by the Honourable Alexander Erwin Minister of Trade and Industry, WT/MIN(03)/ST/43 (11 September 2003).

South Africa Statement by the Honourable Alexander Erwin Minister of Trade and Industry, WT/MIN(03)/ST/43 (11 September 2003).

South Africa Statement by HE Mr. Mandisi Mpahlwa, Minister of Trade and Industry, WT/MIN(05)/ST/87 (16 December 2005).

South Africa Statement by HE Mr. Mandisi Mpahlwa, Minister of Trade and Industry, WT/MIN(05)/ST/87 (16 December 2005).

South Africa Statement by HE Mr. Mandisi Mpahlwa, Minister of Trade and Industry, WT/MIN(05)/ST/87 (16 December 2005).

India Statement by HE Mr. Kamal Nath Minister of Commerce and Industry, WT/MIN(05)/ST/17 (14 December 2005).

India Statement by H.E. Mr. Arun Jaitley Minister of Commerce and Industry and Law and Justice, WT/MIN(03)/ST/7 (10 September 2003), para. 4.

India Statement by the Honourable Murasoli Maran Minister of Commerce and Industry, WT/MIN(01)/ST/21 (10 November 2001), para. 6.

India Statement by H.E. Mr. Arun Jaitley Minister of Commerce and Industry and Law and Justice, WT/MIN(03)/ST/7 (10 September 2003), para. 5.

India Statement by H.E. Mr. Arun Jaitley Minister of Commerce and Industry and Law and Justice, WT/MIN(03)/ST/7 (10 September 2003), para. 6.

India Statement by HE Mr. Kamal Nath Minister of Commerce and Industry, WT/MIN(05)/ST/17 (14 December 2005).

See e.g. Brazil, Statement by H.E. Mr. Celso Amorim Minister of External Relations, WT/MIN(03)/ST/28 (11 September 2003); Brazil Statement by HE Mr. Celso Amorim, Minister of External Relations, WT/MIN(05)/ST/8 (14 December 2005).

Brazil, Statement by H.E. Mr. Celso Amorim Minister of External Relations, WT/MIN(03)/ST/28 (11 September 2003).

Ibid.

Ibid.

Ibid.

Brazil Statement by HE Mr. Celso Amorim, Minister of External Relations, WT/MIN(05)/ST/8 (14 December 2005).

China Statement by H.E. Mr. Chen Deming Minister of Commerce, WT/MIN(09)/ST/113 (2 December 2009).

BRIC First Summit: Joint Statement of the BRIC Countries Leaders, Yekaterinburg, Russia (June 16, 2009), para. 5; BRIC Second Summit: Joint Statement, Brasilia (April 16, 2010), para. 14; BRICS Third Summit: Sanya Declaration and Action Plan, Sanya, China (14 April, 2011), para. 26; BRICS, ‘The Fifth Meeting of the BRICS Trade Ministers: Joint Communiqué’, Moscow, Russia (7 July 2015), para. 5.

BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 15–16.

BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 15–16; BRICS The Fifth Meeting of the BRICS Trade Ministers: Joint Communiqué, Moscow, Russia (7 July 2015), para. 6–7.

BRICS Fourth Summit: Delhi Declaration and Action Plan, Delhi, India (March 29, 2012), para. 17; BRICS Fifth Summit: eThekwini Declaration and Action Plan, Durban, South Africa (27 March 2013), para. 17; BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), 22.

BRICS Sixth Summit: Fortaleza Declaration and Action Plan, Fortaleza, Brazil (15 July 2014), para. 21.

BRICS The 2nd Meeting of the BRICS Trade and Economic Ministers: Joint Press Release, New Delhi (March 28, 2012), para. 1 (emphasis added).

BRICS Ministerial Declaration of the BRICS Trade Ministers, WT/MIN(11)/18 (14 December 2011); see also: BRICS The Third Meeting of the BRICS Trade Ministers, Durban (26 March 2013) (emphasis added).

BRICS Trade Ministers Communiqué 6th Meeting of the BRICS Trade Ministers, New Delhi, India (13 October 2016) (“Ministers recognized the importance of preserving policy space to promote industrialization, industrial upgrading and value addition as a core pillar for structural transformation and sustainable development and BRICS countries integration into the global economy. They agreed to enhance cooperation in this regard.”).

BRICS Trade Ministers Communiqué 6th Meeting of the BRICS Trade Ministers, New Delhi, India (13 October 2016), para. 3.

Brazil Statement by H.E. Mr. Luiz Alberto Figueiredo Machado, Minister of Foreign Relations, WT/MIN(13)/ST/4 (4 December 2013).

Brazil Statement by H.E. Mr. Luiz Alberto Figueiredo Machado, Minister of Foreign Relations, WT/MIN(13)/ST/4 (4 December 2013).

Brazil Speech by Minister Mauro Vieira at the Opening Session of the 10th Ministerial Conference (16 December 2015). http://​www.​itamaraty.​gov.​br/​en/​speeches-articles-and-interviews/​minister-of-foreign-affairs-speeches/​12732-speech-by-minister-mauro-vieira-on-the-occasion-of-the-opening-session-of-the-10th-ministerial-conference-of-the-world-trade-organization-nairobi-december-16-2015. Accessed 11 September 2020.

Brazil Statement by H.E. Mr. Alooysio Nunes Ferreira Filho Minister of Foreign Affairs, 11th Ministerial Conference, Buenos Aires, WT/MIN(17)/ST/13 (13 December 2017).

India Statement by H.E. Mr. Anand Sharma, Minister of Commerce and Industry, WT/MIN(13)/ST/22 (4 December 2013).

India Statement by H.E. Mr. Anand Sharma, Minister of Commerce and Industry, WT/MIN(13)/ST/22 (4 December 2013).

India Statement by H.E. Mr. Suresh Prabhakar Prabhu Union Minister for Commerce and Industry, WT/MIN(17)/ST/9 (13 December 2017).

India Statement by H.E. Mr. Suresh Prabhakar Prabhu Union Minister for Commerce and Industry, WT/MIN(17)/ST/9 (13 December 2017).

South Africa Statement by H.E. Dr. Rob Davies Minister for Trade and Industry, WT/MIN(13)/ST/27 (5 December 2013).

South Africa Statement by H.E. Dr. Rob Davies Minister for Trade and Industry, WT/MIN(13)/ST/27 (5 December 2013).

South Africa Statement by Dr. Robert Haydn Davies, Minister of Trade and Industry, WT/MIN(17)/ST/129 (2 August 2018).

South Africa Statement by H.E. Dr. Rob Davies Minister for Trade and Industry, WT/MIN(13)/ST/27 (5 December 2013).

China, General Statement, 11th Ministerial Conference, Nairobi, Plenary Session (16 December 2015) audio and video file available online at: https://​www.​wto.​org/​english/​thewto_​e/​minist_​e/​mc10_​e/​mc10_​planarysessions_​e.​htm#CHN. Accessed: 11 Sept 2020.

China Statement by H.E. Mr. Gao Hucheng, Minister of Commerce, WT/MIN(13)/ST/99 (24 January 2014); China Statement by H.E. Dr. Zhong Shan Minister of Commerce of the People’s Republic of China, WT/MIN(17)/ST/127 (25 January 2018).

China Statement by H.E. Mr. Gao Hucheng, Minister of Commerce, WT/MIN(13)/ST/99 (24 January 2014); China Statement by H.E. Dr. Zhong Shan Minister of Commerce of the People’s Republic of China, WT/MIN(17)/ST/127 (25 January 2018).

BRICS The 4th Meeting of the BRICS Trade Ministers: Joint Communiqué, Fortaleza, Brazil (14 July 2014), para. 4.

BRICS The 4th Meeting of the BRICS Trade Ministers: Joint Communiqué, Fortaleza, Brazil (14 July 2014), para. 5; see also: BRICS The Fifth Meeting of the BRICS Trade Ministers: Joint Communiqué, Moscow, Russia (7 July 2015), para. 9.

BRICS Trade Ministers Communiqué 6th Meeting of the BRICS Trade Ministers, New Delhi, India (13 October 2016), para. 20.

BRICS Eleventh Summit: Brasilía Declaration, Brasilia, Brazil (14 November, 2019), para. 27.

See Sect. 2.​1.​3.​4.

Malone (2019), p. 76; Rolland and Trubek (2019), p. 36, 173 et seqq.

See: ASEAN Press Office (2020).

Rolland and Trubek (2019), p. 27.

Oba (2019).

See e.g.: Sooksripaisarnkit and Garimella (2018); Chaisse (2018).

See e.g.: Tang (2019) and Sooksripaisarnkit and Garimella (2018); but see on possible repercussion of the initiative on ISDS reform and China’s legal position: Chen (2020).

see on such matters also the contributions in: Zhao (2018).

On such a scenario see: Kang (2018).

For a more comprehensive overview see: Rolland and Trubek (2019), p. 187 et seqq.

See in more depth the contributions in: Luke and MacLeod (2019).

See also: Rolland and Trubek (2019), p. 184.

Lists of these agreements are provided at WTO member information pages available at: https://​www.​wto.​org/​english/​thewto_​e/​countries_​e/​. Accessed: 11 Sept 2020.

Brazil Statement by H.E. Mr. Fernando Henrique Cardoso, President, WT/FIFTY/H/ST/7 (19 May 1998), para. 9.

Brazil Statement by H.E. Mr. Luiz Felipe Lampreia Minister of Foreign Relations, WT/MIN(99)/ST/5 (1 December 1999); see also: Brazil Statement by H.E. Mr. Celso Lafer Minister of Foreign Relations, WT/MIN(01)/ST/12 (10 November 2001).

Brazil Statement by HE Ambassador Celso Nunes Amorim, Minister for Foreign Affairs, WT/MIN(09)/ST/11 (30 November 2009); see also: Brazil, Statement by H.E. Mr. Celso Amorim Minister of External Relations, WT/MIN(03)/ST/28 (11 September 2003); Brazil Statement by HE Mr. Celso Amorim, Minister of External Relations, WT/MIN(05)/ST/8 (14 December 2005).

India Statement by Dr. B.B. Ramaiah Minister of Commerce, WT/MIN(96)/ST/27 (9 December 1996).

Communication from India, Informal Intersessional General Council Meeting on 26-27 October, WT/GC/W/114 (18 November 1998).

India Statement Circulated by Mr. Ramakrishna Hegde, Minister of Commerce, WT/MIN(98)/ST/36 (18 May 1998), para. 13; Statement by India, Committee on Sanitary and Phytosanitary Measures, Implementation of the Provisions for Special and Differential Treatment, Meeting of 21-22 June 2000, WTO Doc. G/SPS/GEN/197 (21 July 2000).

India Statement by H.E. Mr Arun Jaitley Minister of Commerce and Industry and Law and Justice, WT/MIN(03)/ST/7 (10 September 2003), para. 8.

India Statement by H.E. Mr. Arun Jaitley Minister of Commerce and Industry and Law and Justice, WT/MIN(03)/ST/7 (10 September 2003), para. 8.

India Statement by H.E. Mr. Arun Jaitley Minister of Commerce and Industry and Law and Justice, WT/MIN(03)/ST/7 (10 September 2003); para. 8.

Communication from India, Informal Intersessional General Council Meeting on 26-27 October, WT/GC/W/114 (18 November 1998).

South Africa Statement by H.E. Mr. Alec Erwin Minister of Trade and Industry, WT/MIN(96)/ST/114 (12 December 1996); South Africa Statement by H.E. Mr Alexander Erwin, MP Minister of Trade and Industry, WT/MIN(01)/ST/7 (10 November 2001). Statement by South Africa, Fourth Special Session of the Committee on Agriculture 15–17 November 2000, WT Doc. G/AG/NG/W/82 (29 November 2000); Statement by South Africa, Sixth Special Session of the Committee on Agriculture, 22–23 March 2001, G/AG/NG/W/168 (6 April 2001).

South Africa Statement by the Honourable Alexander Erwin Minister of Trade and Industry, WT/MIN(03)/ST/43 (11 September 2003).

South Africa Statement by the Honourable Alexander Erwin Minister of Trade and Industry, WT/MIN(03)/ST/43 (11 September 2003).

Statement by South Africa, Fourth Special Session of the Committee on Agriculture 15-17 November 2000, WT Doc. G/AG/NG/W/82 (29 November 2000); see in a similar vein: South Africa Statement by Hon. Dr. Rob Davies Minister of Trade and Industry, WT/MIN(15)/ST/17 (18 December 2015).

Brazil Statement by H.E. Mr. Luiz Alberto Figueiredo Machado, Minister of Foreign Relations, WT/MIN(13)/ST/4 (4 December 2013).

Brazil Statement by H.E. Mr. Aloysio Nunes Ferreira Filho, Minister of Foreign Affairs, WT/MIN(17)/ST/13 (13 December 2017).

India Statement by H.E. Mr. Anand Sharma, Minister of Commerce and Industry, WT/MIN(13)/ST/22 (4 December 2013).

India Statement by H.E. Mrs. Nirmala Sitharaman, Minister of State for Commerce and Industry, WT/MIN(15)/ST/9 (17 December 2015).

China Statement by H.E. Mr. Lu Fuyuan, Minister of Commerce, WT/MIN(03)/ST/12 (11 September 2003); China Statement by HE Mr. Bo Xilai, Minister of Commerce, WT/MIN(05)/ST/59 (14 December 2005).

China Statement by HE Mr. Bo Xilai, Minister of Commerce, WT/MIN(05)/ST/59 (14 December 2005).

Tu (2013), p. 174 et seq.; Liang (2013), p. 214 et seq.

Cf. Tu (2013), p. 174.

BRICS Ministerial Declaration of the BRICS Trade Ministers, WT/MIN(11)/18 (14 December 2011).

BRICS BRICS Trade Ministers’ Statement, Puerta Vallarta, Mexico (19 April 2012).

BRICS Joint Declaration of the 4th Meeting of the BRICS Ministers of Agriculture and Agrarian Development, Brasilia (13 March 2015), para. 12-13.

European Communities—Export Subsidies on Sugar, WT/DS266/1, Request for Consultations by Brazil (1 October 2002).

United States—Subsidies on Upland Cotton, WT/DS267/1, Request for Consultations by Brazil (3 October 2002).

See on these legal issues in more depth: Powell and Schmitz (2005), Reithmann (2006), Hoekman and Howse (2008) and Guan (2014).

Press Statement by Oxfam, cited in: ICTSD (2004).

See on the involvement of agricultural lobby groups in the cases: Hopewell (2013).

See for a summary of the case: Powell and Schmitz (2005), p. 315 et seqq.

Hoekman and Howse (2008), p. 149 et seqq.

Data on sugar exports unfortunately is not provided by the WTO which is why this assessment is based on data provided by the International Trade Center, available at: https://​www.​trademap.​org/​tradestat.

In this context cross subsidization describes the practice whereby producers use rents obtained through subsidies for a particular product to support their exports of another product, or in this case—where producers use subsidies obtained for sugar sold on domestic markets (A and B sugar) to support their exports of other sugar (so-called C sugar).

See: EC—Export Subsidies on Sugar, Complaint by Brazil, WT/DS266/R, Report of the Panel (15 October 2004), para. 3.1–4.9; for a summary see also: Hoekman and Howse (2008), p. 149.

In the case of ACP this obligation was based on Article 1 para. 1 of Protocol 3 to Annex IV of the ACP/EC Partnership Agreement, and in the case of India the obligation stemmed from a bilateral trade agreement, see: EC—Export Subsidies on Sugar, Complaint by Brazil, WT/DS266/R, Report of the Panel (15 October 2004), 10 and Powell and Schmitz (2005), p. 316.

See the Third Party statements provided by ACP countries in the case: EC—Export Subsidies on Sugar, Complaint by Brazil, WT/DS266/R, Report of the Panel (15 October 2004), p. 89; see also: Hoekman and Howse (2008), p. 152.

See: Third Party submissions summarized in EC—Export Subsidies on Sugar, Complaint by Brazil, WT/DS266/R, Report of the Panel (15 October 2004), p. 89 et seqq. (ACP countries) and p. 98 et seqq. (India).

EC—Export Subsidies on Sugar, Complaint by Brazil, WT/DS266/R, Report of the Panel (15 October 2004) 89.

EC—Export Subsidies on Sugar, Complaint by Brazil, WT/DS266/R, Report of the Panel (15 October 2004) 163–188.

EC—Export Subsidies on Sugar, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, Report of the Appellate Body (28 April 2005).

See: Regulation (EC) No. 318/2006, Regulation (EC) No. 319/2006 and Regulation (EC) No. 320/2006.

Data on sugar ex- and imports is taken from the European Commission’s Market Access Database, available at: http://​madb.​europa.​eu/​madb/​statistical_​form.​htm.

Hoekman and Howse (2008), p. 177. Note that according to Article 5 para. 4 of the Protocol 3 to Annex IV to the ACP/EC Partnership Agreement guaranteed prices were negotiated anew every year “taking into account relevant economic factors”.

The EC/ACP Sugar Protocol was terminated by the EU as of 1 October 2009.

Regulation (EC) No. 266/2006.

After the transition period ended as of 1 October 2015, trade in sugar with ACP countries is governed by several Economic Partnership Agreements. Therefore, preferential market access for sugar is granted to an increased number of EPA Member States and also LDCs under the EU’s so-called ‘Everything but Arms’ initiative. See for an overview: Garcia-Duran and Casanova (2009).

For an overview: South Centre The Reform of the EU Sugar Sector, Analytical Note SC/AN/TDP/MA/3, Geneva, Switzerland (November 2017), 29 with further references.

United States—Subsidies on Upland Cotton, WT/DS267/R, Report of the Panel (8 September 2004), Annex A-1.

United States—Subsidies on Upland Cotton, WT/DS267/R, Report of the Panel (8 September 2004), p. 217 et seqq. and 348.

United States—Subsidies on Upland Cotton, WT/DS267/R, Report of the Panel (8 September 2004), p. 265 and 349.

United States—Subsidies on Upland Cotton, WT/DS267/R, Report of the Panel (8 September 2004), p. 307-329.

United States—Subsidies on Upland Cotton, WT/DS267/AB/R, Report of the Appellate Body (3 March 2005), p. 288 et seqq.

Powell and Schmitz (2005), p. 306.

United States—Subsidies on Upland Cotton, Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 7.10 of the SCM Agreement, WT/DS267/ARB/2, Decision by the Arbitrator (August 31 2009), p. 52 (para. 4.195).

United States-Subsidies on Upland Cotton, WT/DS267/43, Communication from Brazil (12 March 2010).

United States—Subsidies on Upland Cotton, WT/DS267/45, Joint Communication from Brazil and the United States (31 August 2010).

United States—Subsidies on Upland Cotton, WT/DS267/46, Notification of a Mutually Agreed Solution (23 October 2014), p. 4 (Section IV).

United States—Subsidies on Upland Cotton, WT/DS267/46, Notification of a Mutually Agreed Solution (23 October 2014) 4-5 (Section VI and Section VIII).

United States—Subsidies on Upland Cotton, WT/DS267/46, Notification of a Mutually Agreed Solution (23 October 2014), p. 2.

In mid-2016 the US announced that it would support domestic cotton producers with US$ 300 million, what led to renewed quarrels with Brazil within the WTO’s Committee on Agriculture, see: ICTSD (2016a).

Hopewell (2016), p. 113.

The Cotton-4 include Benin, Burkina Faso, Chad, and Mali. Cotton production plays an important role in these countries as it accounts for 5–10% of their GDP, 30% of their total export earnings, and more than 10 million people directly depend on cotton production (and more indirectly), see: Mavroidis (2016), 600 with further information on cotton initiatives within the WTO.

Hopewell (2016), p. 113.

Cited in: Daemmrich (2012), p. 236.

Kattau (2015), p. 123.

See: Hopewell (2016), p. 113. See on the application of the findings to other crops: Powell and Schmitz (2005), p. 312 et seqq.

Note that recent negotiations brought some outcomes of benefit to Cotton 4 countries but mostly they contain no hard legal commitments (e.g. to grant preferential market access or reduce domestic support to cotton producers in developed countries), see: Ministerial Decision of 19 December 2015 (Cotton), WT/MIN(15)/46, WT/L/981 (21 December 2015).

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008).

See: Häberli (2016), p. 111. This is also evident in developing countries’ insistence on continuing the DDR based on the initial mandate and negotiated modalities.

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), p. 4 (I. A. 1.); see also: Häberli (2016), p. 110.

Häberli (2016), p. 110.

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), p. 4 (I. A. 3. c)).

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), p. 7 (I. C.).

Häberli (2016), p. 110.

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), p. 6 (B. 13).

Ibid. p. 6 (I. A. 16.-18.).

Ibid. p. 13 (I. G.).

Ibid. p. 39 et seqq. (Annex B).

Ibid. p. 39 (Annex B).

See: Gifford and Montemayor (2008), p. 2; South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 19 et seqq.

See for an in detail analysis: Josling and Swinbank (2011), pp. 80 and 88 et seqq.

Josling and Swinbank (2011), p. 94.

US Agricultural Act of 2014, Public Law No: 113-79 (2 July 2014).

Blandford and Orden (2011), p. 124.

Blandford and Orden (2011), p. 124.

Blandford and Orden (2011), p. 40.

Blandford and Orden (2011), p. 150.

Blandford and Orden (2011), p. 150.

Blandford and Orden (2011), p. 145 and 150; see also: South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 19.

On the problematic aspects of box-shifting and green box support, see the collected papers in: Meléndez-Ortiz et al. (2009); the South Centre has called this “the biggest loophole in in Rev 4”, see: South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 18.

Gifford and Montemayor (2008), p. 3.

Gifford and Montemayor (2008), p. 3.

See: Gifford and Montemayor (2008), p. 3.

See e.g.: Nassar (2011), p. 237.

Nassar (2011), p. 237.

See for a more detailed analysis: Nassar (2011), p. 270 et seqq.

‘Goods Schedule of South Africa’, Annexed to the Marrakesh Protocol, Part IV, Section I.

See Trade Policy Review Body Trade Policy Review: Southern African Customs Union (Namibia, Botswana, Swaziland, South Africa and Lesotho), WT/TPR/S/324 (30 September 2015), Annex 4: South Africa, 326 (para. 4.17).

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), p. 5 (I. A. 6.).

Gopinath (2011), p. 305.

Gopinath (2011), p. 306 et seqq.

Goods Schedule of the Republic of China, WT/ACC/CHN/49/Add 1; WT/MIN801)/3/Add 1 (1 October 2001), Part IV, Section I; see also: Report of the Working Party on the Accession of China, WT/ACC/CHN/49 (1 October 2001), Fn. 335.

‘Report of the Working Party on the Accession of China’, WT/ACC/CHN/49, 1st October 2001, Fn. 335.

Cf. Cheng (2011), p. 322.

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), 5 (I. A. 6) and 9 (I. A. 32).

Cheng (2011), p. 346.

Cf. South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), 19.

Glauber and Westhoff (2015), p. 1295; Orden and Zulauf (2015), p. 1308; South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 19.

Orden and Zulauf (2015), p. 1308 et seq.; South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 19.

South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 22.

South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 23.

Proposals have inter alia been brought forward by the ACP group, Argentina, the EU and Brazil, the group of LDCs, Mexico, and New Zealand, for an overview see: ICTSD (2017a).

Brazil, EU, Colombia, Peru and Uruguay Proposal on Domestic Support, Public Stockholding for Food Security Purposes and Cotton, Committee on Agriculture, Special Session, JOB/AG/99 (17 July 2017), p. I. (Domestic Support) and II. (Public Stockholding).

The China-India proposal is informal and not available to the public. A brief summary has been provided by: ICTSD (2017a).

See: ICTSD (2017b).

See: ICTDS (2017).

See on support levels of individual countries and future projections: Nassar (2011), Gopinath (2011) and Cheng (2011).

See on public stockholding programs within the WTO context: McMahon (2006), p. 69; Kattau (2015), p. 153 et seqq.

Montemayor (2014), p. 3.

See e.g. Opening Remarks by the Chair, Informal Meeting of the Committee on Agriculture, Special Session, 27 March 2013, WTO Doc. JOB/AG/23 (28 March 2013).

Montemayor (2014), p. 3.

South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), 37.

See in more detail and with a case study for G-33 countries: Nakuja and Kerr (2018).

See for a summary of Indian agricultural support programs from a WTO perspective: Jayagovind (2014).

In Korea—Measures Affecting Imports of Fresh Chilled and Frozen Beef the Panel acknowledged that countries may officially set a limit to the scope of their price support programs and thereby limit “eligible production” to a certain portion or percentage of local production but rejected Koreas argument to base “eligible production” on actual purchases, see: Korea—Beef Products, WT/DS161/R and WT/DS169/R, Report of the Panel (31 July 2000), para. 827; see also: Korea—Beef Products, WT/DS161/AB/R and WT/DS169/AB/R, Report of the Appellate Body (11 December 2000), para. 122. Simulations display that if countries would implement fixed limits for eligible production, many could avoid breaching their AMS or de minimis caps; see: Montemayor (2014), p. 2.

Annex 2 para. 3 Fn. 5 AoA; see also: Mavroidis (2016), p. 595.

See also: South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 34.

Montemayor (2014), p. 4; Kattau (2015), p. 154.

Korea—Beef Products, WT/DS161/R and WT/DS169/R, Report of the Panel (31 July 2000); Korea—Beef Products, WT/DS161/AB/R and WT/DS169/AB/R, Report of the Appellate Body (11 December 2000).

Montemayor (2014), p. 4; Kattau (2015), p. 154.

See e.g.: Nedumpara (2014), p. 179.

See: Singh and Gupta (2016), p. 319.

Gopinath (2011), p. 305.

Indian National Food Security Act, Act No. 20 of 2013, India Code (2013), available at http://​dfpd.​nic.​in/​public-distribution-acts.​htm. Accessed 12 Sept 2020.

National Food Security Act (2013) Article 3 and Schedule I.

National Food Security Act (2013) Article 22 and 2 para. 2 i).

Cf. Nedumpara (2014), p. 178.

The earliest proposal appears to be one by the African Group, see: Proposal by the African Group, WTO Doc. JOB(02)/187 (20 November 2002). See for a timeline of negotiations related to public stockholding: https://​www.​wto.​org/​english/​tratop_​e/​agric_​e/​factsheet_​agng_​e.​htm.

Cf. Opening Remarks by the Chair, Informal Meeting of the Committee on Agriculture, Special Session, 27 March 2013, WTO Doc. JOB/AG/23 (28 March 2013).

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), 39.

Nassar (2011), p. 229 et seq.

Nassar (2011), p. 233.

See also Hopewell (2016).

Brazil Statement by H.E. Mr. Alooysio Nunes Ferreira Filho Minister of Foreign Affairs, 11th Ministerial Conference, Buenos Aires,, WT/MIN(17)/ST/13 (13 December 2017); Brazil, EU, Colombia, Peru and Uruguay Proposal on Domestic Support, Public Stockholding for Food Security Purposes and Cotton, Committee on Agriculture, Special Session, JOB/AG/99 (17 July 2017), Section II (Public Stockholding).

See: Liang (2013), p. 217; see also: Palma (2015), p. 222; WTO Trade Policy Review Body Trade Policy Review, China, WT/TPR/S/342 (15 June 2016), p. 116.

China—Domestic Support for Agricultural Producers, WT/DS511/8, Panel Report (28 February 2019).

G-33 Proposal on Some Elements of TN/AG/W/4/Rev. 4 for Early Agreement to Address Food Security Issues, Committee on Agriculture Special Session, WTO Doc. JOB/AG/22 (13 November 2012).

G-33 Non Paper, Committee on Agriculture Special Session, WTO Doc. JOB/AG/25 (3 October 2013).

Cf. Narlikar and Tussie (2016), p. 217.

Vickers (2014).

Howse (2014).

India Statement by H.E. Mr. Anand Sharma, Minister of Commerce and Industry, WT/MIN(13)/ST/22 (4 December 2013); see also: Statement of Shri Anand Sharma, Minister of Commerce and Industry in Parliament on the 9th Ministerial Conference of WTO at Bali, Press Information Bureau Government of India (17 December 2013). http://​pib.​nic.​in/​newsite/​PrintRelease.​aspx?​relid=​101827.

Narlikar and Tussie (2016), p. 217; Howse (2014).

Narlikar and Tussie (2016), pp. 218 and 223; see on the differing self-perception of India: Statement of Shri Anand Sharma, Minister of Commerce and Industry in Parliament on the 9th Ministerial Conference of WTO at Bali, Press Information Bureau Government of India (17 December 2013). http://​pib.​nic.​in/​newsite/​PrintRelease.​aspx?​relid=​101827., 7.

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013).

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013).

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013), para. 2, Fn. 2.

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013), para. 2.

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013), para. 3.

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013), para. 4.

For that interpretation also: Mavroidis (2016), p. 595.

Jayagovind (2014), p. 512.

Jayagovind (2014), p. 512.

Statement of Shri Anand Sharma, Minister of Commerce and Industry in Parliament on the 9th Ministerial Conference of WTO at Bali, Press Information Bureau Government of India (17 December 2013). http://​pib.​nic.​in/​newsite/​PrintRelease.​aspx?​relid=​101827.​; see also: Nedumpara (2014), p. 178.

ICTSD (2014).

Agreement on Trade Facilitation, Ministerial Decision, WT/MIN(13)/36; WT/L/911 (7 December 2013), para. 3.

See: Article IX para. 1 of the Agreement Establishing the WTO; see also: ICTSD (2014).

ICTSD (2014).

Sitharaman N Speech in Lok Sabha regarding India’s Stance in the WTO, Press Information Bureau of the Government of India, Ministry of Commerce and Industry (5 August 2014). www.​pib.​nic.​in. Accessed 12 Sept 2020.

See also: Kattau (2015), p. 162.

The proposal is not public but was mentioned in a factsheet prepared by the WTO Secretariat, which is available at: https://​www.​wto.​org/​english/​tratop_​e/​agric_​e/​factsheet_​agng_​e.​htm.

WTO Press Office (2014).

Public Stockholding for Food Security Purposes, General Council Decision, WT/L/939 (28 November 2014).

Public Stockholding for Food Security Purposes, General Council Decision, WT/L/939 (28 November 2014), para. 2; see also: Kerr (2015), p. 4.

Public Stockholding for Food Security Purposes, General Council Decision, WT/L/939 (28 November 2014), para. 1.

Kerr (2015), p. 4.

See: G-33 Proposed Permanent Solution on Public Stockholding for Food Security Purposes, Committee on Agriculture Special Session, WT/MIN(15)/W/22 JOB/AG/54 (24 November 2015); G-33 SSM and Permanent Solution on Public Stockholding For Food Security Purposes for Balanced Nairobi Outcomes, Committee on Agriculture Special Session, WTO Doc. TN/AG/GEN/40 (11 December 2015).

G-33 Proposed Permanent Solution on Public Stockholding for Food Security Purposes, Committee on Agriculture Special Session, WT/MIN(15)/W/22 JOB/AG/54 (24 November 2015), para. 1 of the proposed Annex 6.

India Statement by H.E. Mr. Suresh Prabhakar Prabhu Union Minister for Commerce and Industry, WT/MIN(17)/ST/9 (13 December 2017) (“One such issue is the permanent solution for public stockholding for food security purposes. This is a matter of survival for eight hundred million hungry and undernourished people in the world. A successful resolution of this issue would fulfil our collective commitment to the global community.”).

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(15)/44-WT/L/979 (19 December 2015), para. 1–2.

See for a summary of proposals prior to the Buenos Aires Ministerial: ICTSD (2017a).

G-33 Ministerial Communiqué, 11th Ministerial Conference, WT/MIN(17)/38 (10 December 2017), para. 5 et seqq.

Brazil Statement by H.E. Mr. Alooysio Nunes Ferreira Filho Minister of Foreign Affairs, 11th Ministerial Conference, Buenos Aires,, WT/MIN(17)/ST/13 (13 December 2017); Brazil, EU, Colombia, Peru and Uruguay Proposal on Domestic Support, Public Stockholding for Food Security Purposes and Cotton, Committee on Agriculture, Special Session, JOB/AG/99 (17 July 2017), section II.

Brazil, EU, Colombia, Peru and Uruguay Proposal on Domestic Support, Public Stockholding for Food Security Purposes and Cotton, Committee on Agriculture, Special Session, JOB/AG/99 (17 July 2017), section II, para. 6 and 7 d).

See: ICTDS (2017) and ICTSD (2017b).

In his final remarks Director General Azevêdo stated his disappointment about this failure, see: Azevêdo R Final Remarks, 11th Ministerial Conference, Closing Ceremony (13 December 2017). https://​www.​wto.​org/​english/​news_​e/​spra_​e/​spra209_​e.​htm.

Liang (2013), p. 218.

China—Domestic Support for Agricultural Producers, WT/DS511/8, Request for the Establishment of a Panel by the United State (6 December 2016).

Brink and Orden (2016), p. 2 et seq.

China—Broiler Products, WT/DS427/R, Report of the Panel (2 August 2013).

China—Tariff Rate Quotas for Certain Agricultural Products, WT/DS517/1, Request for consultations by the United States (21 December 2016).

Brink and Orden (2016), p. 9.

Brink and Orden (2016), p. 10.

Brink and Orden (2016), p. 10.

US lobby groups such as the US Grains Council, the US Wheat Associates, and the National Association of Wheat Growers have voiced those concerns, see: Brink and Orden (2016), p. 12; the US acted upon these calls, leading to the cases against China.

Cited in: WTP Press Office (2017).

China—Domestic Support for Agricultural Producers, WT/DS511/8, Panel Report (28 February 2019).

Calculations unfortunately cannot be based on notifications by China because China has not submitted WTO notifications on domestic support for the years 2012–2015 (States often lag behind on those notifications because of various reasons which also can involve strategic considerations, as in this case) but have been calculated by Brink and Orden (2016), p. 30 (Table 1).

Brink and Orden (2016), p. 30.

China—Domestic Support for Agricultural Producers, WT/DS511/8, Panel Report (28 February 2019), para. 7.280; 7.289.

China—Domestic Support for Agricultural Producers, WT/DS511/8, Panel Report (28 February 2019) para. 7.283.

Korea—Beef Products, WT/DS161/R and WT/DS169/R, Report of the Panel (31 July 2000) para. 827.

Korea—Beef Products, WT/DS161/R and WT/DS169/R, Report of the Panel (31 July 2000) para. 827.

See: ICTSD (2016c).

Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013), para. 2; see also: Brink and Orden (2016), p. 25.

See for these requirements: Public Stockholding for Food Security Purposes, Ministerial Decision, WT/MIN(13)/38, WT/L/913 (7 December 2013), para. 4.

See: Palma (2015), p. 217 with further references.

Numbers are based on data provided by FAO and is based on the year 2017, the last year for which data is available. FAO Statistical Data on food security indicators is available at: http://​www.​fao.​org/​faostat/​en/​#data/​FS.

WTO Trade Policy Review Body Trade Policy Review, China, WT/TPR/S/342 (15 June 2016), p. 115.

Palma (2015), p. 221.

See for a comparison of per farmer domestic support in different countries: South Centre The WTO’s Agriculture Domestic Supports Negotiations, Analytical Note, SC/AN/TDP/201 (January 2017), p. 22 et seq.

On South Africa’s agricultural policy see: Trade Policy Review Body Trade Policy Review: Southern African Customs Union (Namibia, Botswana, Swaziland, South Africa and Lesotho), WT/TPR/S/324 (30 September 2015), Annex 4 (South Africa), p. 326 et seqq.

See in more-depth: Hopewell (2016), p. 119.

Cf. Hopewell (2016), p. 120.

Hopewell (2016), p. 122 et seq.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015).

See for example the EC’s objection to curbing export support during the Doha Ministerial Conference in 2001, for an overview and analysis : Kattau (2015), p. 106 et seq.

See: Decision Adopted by the General Council on 1 August 2004, WT/L/597 (2 August 2004), para. 17 et seq.

Doha Work Programme, Ministerial Declaration, WT/MIN(05)/DEC (22 December 2005), para. 6.

See e.g.: Diaz-Bonilla and Hepburn (2016), p. 26.

See: Mavroidis (2016), p. 592.

See for a more detailed analysis of the CAP reform in the context of WTO agreements and food security: Kattau (2015), p. 165 et seqq.

Kattau (2015), p. 170.

See e.g.: Diaz-Bonilla and Hepburn (2016), p. 31.

Proposal on Export Competition from Brazil, European Union, Argentina, New Zealand, Paraguay, Peru, Uruguay and the Republic of Moldova, WTO Committee on Agriculture Special Session, WTO Doc. JOB/AG/48/Corr.1 (16 November 2015), para. 3.

See: Kanth (2015).

India Statement by H.E. Mrs. Nirmala Sitharaman, Minister of State for Commerce and Industry, WT/MIN(15)/ST/9 (17 December 2015), para. 10 et seq.

ICTSD (2015b), p. 2.

Brazil Speech by Minister Mauro Vieira at the Opening Session of the 10th Ministerial Conference (16 December 2015). http://​www.​itamaraty.​gov.​br/​en/​speeches-articles-and-interviews/​minister-of-foreign-affairs-speeches/​12732-speech-by-minister-mauro-vieira-on-the-occasion-of-the-opening-session-of-the-10th-ministerial-conference-of-the-world-trade-organization-nairobi-december-16-2015. Accessed 11 September 2020.

ICTSD (2015a).

G-33 statements entirely focused on those issues without even mentioning export support, see e.g.: G-33 Ministerial Communique, WT/MIN(15/14), (14 December 2015).

In his final statement the Chinese representative strongly praised the decision on export support without any mentioning of public stockholding or domestic support: China, General Statement, 11^th Ministerial Conference, Nairobi, Plenary Session (16 December 2015), audio and video file available online at: https://​www.​wto.​org/​english/​thewto_​e/​minist_​e/​mc10_​e/​mc10_​planarysessions_​e.​htm#CHN. Accessed 12 Sept 2020.

Cairns Group Statement of the 39th Cairns Group Ministerial Meeting, WT/MIN(15)/17 (14 December 2015).

Text of Statement by Ms. Nirmala Sitharaman, Minister of State (Independent Charge) for Commerce and Industry in the open ended Agriculture meeting at the 10th Ministerial Conference of WTO on 16th December, 2015 at Nairobi, Kenya, Press Information Bureau Government of India, Ministry of Commerce Industry (2015). available at: http://​pib.​nic.​in/​newsite/​PrintRelease.​aspx?​relid=​133363. Accessed 12 Sept 2020.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 6 and 7.

See also: Diaz-Bonilla and Hepburn (2016), p. 30.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 12.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 6, Fn. 3 and 4.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 15.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 22 et seqq.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 23.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 27–28.

Export Competition, Ministerial Decision, WT/MIN(15)/45-WT/L/980 (19 December 2015), para. 18–21.

See e.g.: WTO Secretariat (2015); Bellmann and Hepburn (2016), p. 16 (“significant step forward”).

The 2014 Farm Bill allows for longer periods but reportedly the US in practice only provides an 18-month maximum repayment term for export financing, see: Diaz-Bonilla and Hepburn (2016), p. 30.

See: Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), Annex K, para. 3; see also: Diaz-Bonilla and Hepburn (2016), p. 30 et seq.

Diaz-Bonilla and Hepburn (2016), p. 27.

While non-tariff trade barriers are also important trade barriers on trade in agricultural products from developing countries, those negotiations mainly took place under SPS negotiations.

Statement by US Trade Representative Susan Schwab (2008), quoted inter alia in: Hopewell (2016), 171.

See e.g. G-20 Ministerial Communiqué, Communication from Brazil, WT/L/559 (23 December 2003); G-20 Ministerial Declaration, WT/MIN(11)/19 (14 December 2011).

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008).

Ibid. para. 61.

Ibid. para. 62.

Ibid. para. 63.

Ibid. para. 64.

Ibid. Attachment Ai: Partial Designation Modalities for Sensitive Products.

Ibid. para. 129 et seqq.

Ibid. 129.

Michalopoulos (2014), p. 211.

Laborde et al. (2012).

Michalopoulos (2014), p. 211; see also: Laborde et al. (2012).

Michalopoulos (2014), p. 211.

See e.g.: Joseph (2011), p. 187 et seqq.; South Centre (2015); Pogge (2015), p. 50.

Rakotoarisoa et al. (2011), p. 4; Matthews (2012), p. 119.

Rakotoarisoa et al. (2011), p. 4 and 11.

See for example the compilation of cases by the South Centre: South Centre (2015); see also: Rakotoarisoa et al. (2011).

Rakotoarisoa et al. (2011), p. 13.

FAO Some Trade Policy Issues Relating to Trends in Agricultural Imports in the Context of Food Security, Committee on Commodity Problems, Sixty-fourth Session, Rome (18–21 March 2003); South Centre (2015); Matthews (2012), p. 119 with further references.

FAO Some Trade Policy Issues Relating to Trends in Agricultural Imports in the Context of Food Security, Committee on Commodity Problems, Sixty-fourth Session, Rome (18–21 March 2003).

South Centre (2009).

On the diverse causes of import surges, see e.g.: Rakotoarisoa et al. (2011).

Matthews (2012), p. 120.

FAO Some Trade Policy Issues Relating to Trends in Agricultural Imports in the Context of Food Security, Committee on Commodity Problems, Sixty-fourth Session, Rome (18–21 March 2003).

FAO Some Trade Policy Issues Relating to Trends in Agricultural Imports in the Context of Food Security, Committee on Commodity Problems, Sixty-fourth Session, Rome (18–21 March 2003).

FAO (2014), p. 3.

FAO (2014), p. 21.

FAO (2014), p. 21.

FAO (2014), p. 21.

See for that argument: Morrison and Mermigkas (2015).

FAO (2014), p. 10.

See on the structure of Article 5 AoA: McMahon (2006), p. 54 et seqq.; Finger (2010), p. 302 et seq.

WTO, ITC, UNCTAD (2016), p. 96.

See: Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, Report of the Panel (3 May 2002), para. 7.22 et seqq.; Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R, Appellate Body Report (23 September 2002); see also: Gifford and Montemayor (2008), p. 6.

See for a comparison of such safeguards with the SSM: Finger (2010).

See e.g.: Article XXVIII GATT 1947; Article XIX GATT (often referred to as “Escape Clause”); Article VI GATT measures (“Anti-dumping and Countervailing Duties”); safeguards contained in the Agreement on Safeguards (ASG), and Article 5 AoA (“Special Safeguard Provisions”).

G-33 G-33 Statement, Special Safeguard Mechanism (10 December 2004). http://​www.​cuts-international.​org. Accessed 11 September 2020, para. 7 et seqq.; Howse and Teitel (2009), p. 54: Joseph (2011), p. 190.

See also.: Mavroidis (2016), p. 376; Howse and Teitel (2009), p. 54 et seq.; Joseph (2011), p. 190.

Joseph (2011), p. 190.

Kattau (2015), p. 220.

Article 5 para. 9 AoA; for an overview of the provision’s negotiation history: McMahon (2006), p. 55; Finger (2010), p. 302.

see e.g.: McMahon (2006), p. 174.

Cainglet (2005), p. 12.

See e.g.: Kattau (2015), p. 221; Thennakoon and Anderson (2015), p. 107.

See: Special Agricultural Safeguard, Background Paper by the Secretariat, Revision, Committee on Agriculture Special Session, WTO Doc. G/AG/NG/S/9/Rev. 1 (18 May 2001).

See e.g.: G-33 G-33 Statement, Special Safeguard Mechanism (10 December 2004). http://​www.​cuts-international.​org. Accessed 11 September 2020, para. 17; see also: Cainglet (2005), p. 12; Finger (2010), p. 303.

See for statistical data of the usage of the SSG: Finger (2009), Annex 1.

See e.g. Kattau (2015), p. 222 et seqq.

Hopewell (2016), p. 172.

Most, if not all, cases in which States invoked Article XX lit. b) GATT were related to health concerns stemming from the product as such and its likely usage in the importing country but not its economic impact. For an overview of relevant cases, see e.g.: Strack and Stoll (2011).

Mechlem (2006), p. 173; Harrison (2007), p. 209; Kattau (2015), p. 530.

See e.g. Wenzel (2011), p. 481 (MN 2).

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R; WT/DS401/AB/R, Appellate Body Report (22 May 2014), para. 5.175 et seqq.

Charnovitz (1998), p. 704; in that direction also: Ming (2016), p. 683 et seqq.

See on that aspect: Kattau (2015), p. 532.

See e.g.: Alliance for Strategic Products and Special Safeguard Mechanism Ministers' Communiqué, WT/MIN(03)/14 (9 September 2003). See a for an overview of the different stages of negotiations until 2008: Wolfe (2009), p. 527 et seqq.

Doha Work Programme, Decision Adopted by the General Council on 1 August 2004, WT/L/579 (2 August 2004).

Ministerial Declaration adopted on 18 December 2005, WT/MIN(05)/DEC (22 December 2005), para. 7.

Joint Communication from the G-33, African Group, ACP, and LDCs on Special Products and the Special Safeguard Mechanism, WTO Doc. TN/AG/GEN/17 (11 May 2006), para. 2 and 4.

See on competing interests among developing countries also: Finger (2010), p. 305.

See e.g. Argentina, Paraguay, Uruguay Revised Consolidated Reference Paper on Possible Modalities on Market Access—SSM: Some Unanswered Technical Issues, WTO Committee on Agriculture, Special Session, WTO Doc. JOB(06)/197/Rev.1 (21 June 2006).

Revised Draft Modalities for Agriculture, WTO Doc. TN/AG/W/4/Rev.1 (8 February 2008), para. 126 et seqq.; Revised Draft Modalities for Agriculture, WTO Doc. TN/AG/W/4/Rev.3 (10 July 2008), para. 123 et seqq.

ICTSD (2008f); see for a detailed analysis: Wolfe (2009).

ICTSD (2008f).

ICTSD (2008d); Wolfe (2009), p. 534.

See for overview of arguments between US and Chinese representatives: ICTSD (2008c).

See: Wolfe (2009), p. 534.

Cited in: Wolfe (2009), p. 534.

ICTSD (2008f); Wolfe (2009); Grant and Meilke (2009), p. 224.

Castle and Mark (2008).

See: Bhala (2009), p. 63; Mercurio and Tyagi (2012), p. 115.

Wolfe (2009), p. 535.

See e.g.: India Statement by HE Mr. Kamal Nath Minister of Commerce and Industry, WT/MIN(05)/ST/17 (14 December 2005); India Statement by H.E. Mrs. Nirmala Sitharaman, Minister of State for Commerce and Industry, WT/MIN(15)/ST/9 (17 December 2015).

Cf. Wolfe (2009), p. 535; Hopewell (2016), p. 167; see on domestic agricultural politics in India and their relation to the WTO: Mahrenbach (2013), pp. 111–145.

Wolfe (2009), p. 535.

Lim and Wang (2010), p. 1311.

As of 2015, 36.7 % of China’s 1.425 billion population were employed in agriculture, China imported agricultural goods worth of US$ 36.567 billion, and the country exported agricultural goods worth of US$ 96.838 billion, see: FAO (2015), p. 85.

See e.g.: Zhu (2017).

Hopewell (2016), p. 170.

Hopewell (2016), p. 170.

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008).

See e.g.: G-33 Refocusing Discussion on the Special Safeguard Mechanism (SSM): Outstanding issues and Concerns on its Design and Structure, WTO Doc. TN/AG/GEN/30 (28 January 2010).

G-33 Special Safeguard Mechanism for Developing Country Members, Committee on Agriculture, Special Session, WT/MIN(15)/W/19 JOB/AG/49 (18 November 2015).

G-33 Special Safeguard Mechanism for Developing Country Members, Committee on Agriculture, Special Session, WT/MIN(15)/W/19 JOB/AG/49 (18 November 2015).

See on concerns by agricultural exporters—including Brazil—that India and China would abuse flexibility granted under the SSM: Wolfe (2009), p. 535.

The proposal foresees smaller triggers for LDCs, for Members with a small share of world trade, for Members characterized by the UN as the ten most vulnerable countries to climate change, and for developing countries whose average bound tariff was lower than 40% in 2015 (Article 5 bis para. 2 lit. d).

On the volume-based SSM the provision foresaw a tiered approach with regard to triggers and available responses (Article 5 bis para. 2). In cases where average imports during the preceding 3-year period exceed 110% but not 115 %, the maximum additional duty imposed on applied tariffs shall not exceed 25% of the current bound tariff or 25 percentage points, whichever is higher (Article 5 bis para. 2 a)). Two additional triggers would allow increasingly higher additional duties the higher the volume of imports relative to what the previous 3 year advantage would be (Article 5 bis para. 2 a-c).

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), para. 140.

Revised Draft Modalities for Agriculture, WTO Committee on Agriculture Special Session, WTO Doc. TN/AG/W/4/Rev.4 (6 December 2008), para. 135.

For a very critical position on this lack of procedural requirements, see: Finger (2010), pp. 290, 308 and 316.

Special Safeguard Mechanism for Developing Country Members, Ministerial Decision, WT/MIN(15)/43 WT/L/978 (19 December 2015), para. 1.

Special Safeguard Mechanism for Developing Country Members, Ministerial Decision, WT/MIN(15)/43 WT/L/978 (19 December 2015), para. 2.

ICTSD (2016b).

India Statement by H.E. Mr. Suresh Prabhakar Prabhu Union Minister for Commerce and Industry, WT/MIN(17)/ST/9 (13 December 2017).

Numbers are based on WTO statistics, available at: http://​stat.​wto.​org/​CountryProfiles/​ZA_​e.​htm.

See e.g.: African Group Joint Proposal on the Negotiations on Agriculture, Committee on Agriculture, Special Session, WTO Doc. G/AG/NG/W/142 (23 March 2001), para. 10; Joint Communication from the G-33, African Group, ACP, and LDCs on Special Products and the Special Safeguard Mechanism, WTO Doc. TN/AG/GEN/17 (11 May 2006), para. 2, 4; Joint Submission by the G-33, Small Vulnerable Economies (SVES), The African, Caribbean and Pacific (ACP) Group, and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Renewing Development Through the Special Products and Special Safeguard Mechanism,, Committee on Agriculture, Special Session, WTO Doc. TN/AG/GEN/36 (28 July 2015).

See for a summary of different accounts in the literature: Matthews (2012), p. 121 et seqq.

Montemayor (2010).

Grant and Meilke (2009), p. 238.

Finger (2010), p. 312 et seq.

Finger (2010), p. 313.

Finger (2010), p. 313 et seq.

Finger (2010), p. 289 and 307 et seqq.

Finger (2010), p. 310.

Hertel et al. (2010), p. 2 and 24 et seqq.

Hertel et al. (2010), p. 24.

Hertel et al. (2010), p. 26.

Ivanic and Martin (2014).

Ivanic and Martin (2014), p. 617.

Ivanic and Martin (2014), p. 607 et seq.

Ivanic and Martin (2014), p. 618.

Thennakoon and Anderson (2015), p. 106.

Thennakoon and Anderson (2015), p. 108.

G-33 Special Safeguard Provisions for Developing Country Members, Committee on Agriculture, Special Session, WT/MIN(15)/W/34, JOB/AG/65 (9 December 2015), Attachment 1, para. 10.

Matthews (2012), p. 124.

Ivanic and Martin (2014), p. 617; See in a similar direction: Matthews (2012), p. 125.

Thennakoon and Anderson (2015), p. 111 et seq.

Thennakoon and Anderson (2015), p. 112 with reference to several case studies and empirical research.

See e.g.: Matthews (2012), p. 124.

See the statements by US Trade Representative Susan Schwab cited above.

Cf. Brink et al. (2013), p. 198 et seq.

Montemayor (2014), p. 37.

See on that threat with regard to India’s food policies: Jayagovind (2014), p. 512.

In that direction: Hopewell (2016), p. 123 and 205 et seqq.

Abbott et al. (2014), p. 33.

See above Sect. 4.​2.​2.​2.​2.

See on the implementation process in individual countries: Schulz and Wu (2004); Kapcynski (2009), p. 1575 et seqq.; Sinha (2016), p. 108 et seqq.; Fasan (2012), and the Panel Report in China—Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, Report of the Panel (26 January 2009).

See for an overview: Abbott et al. (2014), p. 5 and 13 et seqq. and the collected papers in part III of their edited volume.

Abbott et al. (2014), p. 31; Sell (2014), p. 47.

Kapcynski (2009), p. 1575.

Sell (2014), p. 54; see on the case of India: Kapcynski (2009), p. 1575 et seqq.

See on those examples: Sell (2014), p. 54 et seq.

See the self-description at the institution’s webpage, available at: http://​www.​tkdl.​res.​in/​tkdl/​langdefault/​common/​Abouttkdl.​asp?​GL=​Eng. Accessed 12 Sept 2020.

For a critical analysis of the working of the Traditional Knowledge Digital Library and why it was founded see: Prashant and Chandrashekaran (2017), Chapter 9; see more approvingly: Gopalakrishnan (2002).

See for a case study of the Indian pharmaceutical industry: Sinha (2016), p. 108-159.

See for a recent comprehensive study on China’s compliance with TRIPS that highlights several limited shortcomings: Thomas (2017), p. 169.

See: Drahos (2012); Sell (2014), p. 56 et seq.

WIPO (2017), p. 11.

WIPO (2017), p. 9.

See: WIPO (2018), p. 12.

See for a useful comparative table on patent applications: WIPO (2018), p. 37.

See WIPO’s country profiles of the individual countries available at: http://​www.​wipo.​int/​ipstats/​en/​statistics/​country_​profile. Accessed 13 Sept 2020.

See on Chinese patents in the EU the data of the European Patent Office, available at: http://​documents.​epo.​org/​projects/​babylon/​eponet.​nsf/​0/​5D3BD1BD120859A9​C12580D4005AD126​/​$File/​China_​en.​xlsx. Accessed 13 Sept 2020.

Chinese patent applications to the EPO in 2017 increased by 16.6% in comparison to 2016 alone and China was among the top five applicants to the EPO in 2017, see data available at the EPO’s webpage, https://​www.​epo.​org/​about-us/​annual-reports-statistics/​annual-report/​2017/​statistics/​patent-applications.​html#tab2. Accessed 13 Sept 2020.

van Overwalle (2014), p. 358 et seq.

For data on EPO patent applications’ origin, see: https://​www.​epo.​org/​about-us/​annual-reports-statistics/​annual-report/​2017/​statistics/​patent-applications.​html#tab2. Accessed 13 Sept 2020.

Abbott (2014), p. 395.

Abbott (2014), p. 404.

Abbott (2014), p. 404.

See e.g. Abbott (2005), p. 334; Rolland (2007), p. 496.

Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2 (14 November 2001).

Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (1 September 2003).

Amendment of the TRIPS Agreement, General Council Decision of 6 December 2005, WT/L/641 (8 December 2005).

Those documents will be collectively referred to as the ‘WTO’s Public Health Solution’.

See for an insightful historical inquiry containing comments by several developing country negotiators at the time of the Uruguay Round: Watal and Taubman (2015).

See for oversight of the work of WIPO, the OHCHR, the UN Sub-Commission on Human Rights, the WHO, the UN and civil society, which all were involved in bringing about the Doha Declaration on TRIPS and Public Health: Sun (2004), p. 127 et seqq.

Kudlinski (2014), p. 276.

See: Hestermeyer (2007), p. 11.

Medicines and Related Substances Control Amendment Act, Republic of South Africa Government Gazette No 18505, Act No 90, 1997 (12 December 1997), Section 15 C; for an overview, see: Kudlinski (2014), p. 275; Sun (2004), p. 131.

Statement by South Africa, Council for Trade-Related Aspects of Intellectual Property Rights, Special Discussion on Intellectual Property and Access to Medicines, WT Doc. IP/C/M/31 (10 July 2001); see also: Ostergard (1999), p. 878; Hestermeyer (2007), p. 12.

See e.g. Hoekman et al. (2002), p. 374; see on compulsory licencing also: Abbott (2005), p. 326.

Both EU officials and the US government had harshly criticized the Act before it was even adopted into law, see: Hestermeyer (2007), p. 13 with further references.

‘Notice of Motion in the High Court of South Africa’ (Transvaal Provincial Division), Case No. 4183/98, (18 February 1998), available online at: http://​www.​cptech.​org/​ip/​health/​sa/​pharmasuit.​html.

See e.g.: Sell (2003), p. 151; Sun (2004), p. 131; Hestermeyer (2007), p. 13.

Yu (2008), p. 355.

Ostergard (1999), p. 875 et seqq.; Kudlinski (2014), p. 276.

US Executive Order No. 13155, 3 C.F.R. 268-270 (2000) Section 1 (a).

On the reasons for the withdrawal, see e.g.: Kongolo (2001); Hestermeyer (2007), p. 14.

Mayne (2002), p. 249 (“The South African government’s decision to fight the case was a critical factor in generating global media interest.”); Sell (2003), p. 181; Sun (2004), p. 132.

See: Law on Industrial Property, Law No. 9, p. 279 (14 May 1996) (an English translation is available at: http://​www.​wipo.​int/​wipolex/​en/​text.​jsp?​file_​id=​125397. Accessed 13 Sept 2020).

Brazil—Measures Affecting Patent Protection, WT/DS199/1, Request for Consultation by the United States (30 May 2000) and Brazil—Measures Affecting Patent Protection, WT/DS/199/3, Request for the Establishment of a Panel by the United States (9 January 2001).

See e.g. Hestermeyer (2007), p. 243.

Several commentators argue that legitimate working requirements can also be fulfilled by imports and therefore see local-working requirements in violation of Article 27 para. 1 TRIPS, see e.g.: Rott (2002), p. 292; Kampf (2002), p. 105. Note that the Canada—Patent Panel also applied Article 27 para. 1 TRIPS to measures under the exception of Article 30 TRIPS, see: Canada—Patent Protection of Pharmaceutical Products, WT/DS114/R, Report of the Panel (17 March 2000), para. 7.88 et seqq. However, a number of other authors reject the application of Article 27 para. 1 TRIPS to measures under Article 31 TRIPS, inter alia arguing that Article 31 is an exception to Article 27 para.1, see e.g.: Champ and Attaran (2002), p. 367; Hestermeyer (2007), p. 243.

United States—US Patents Code, WT/DS224/1, Request for Consultations by Brazil (7 February 2001).

Brazil—Measures Affecting Patent Protection, WT/DS199/4, Notification of Mutually Agreed Solution (19 July 2001).

See: Brazil—Measures Affecting Patent Protection, WT/DS199/4, Notification of Mutually Agreed Solution (19 July 2001) which contains a letter from then Deputy United States Trade Representative Mr. Peter F. Allgeier.

See on the historical context also: Sun (2004), p. 133 et seqq.; Hestermeyer (2007), p. 15 et seqq.

See in more detail and with further references: Hestermeyer (2007), p. 15 et seqq.

Proposal by the African Group, Bangladesh, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand and Venezuela, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/W/312 (4 October 2001), para. 1–14.

Ibid. para. 1.

Ibid. para. 1–14.

Ibid. para. 5.

Ibid. para. 9.

Australia, Canada, Japan, Switzerland and the United States Draft Ministerial Declaration, Council for TRIPS, WTO Doc. IP/C/W/313 (4 October 2001).

See: Hestermeyer (2007), p. 257.

Brazil Statement by H.E. Mr. Celso Lafer Minister of Foreign Relations, WT/MIN(01)/ST/12 (10 November 2001).

Brazil Statement by H.E. Mr. Celso Lafer Minister of Foreign Relations, WT/MIN(01)/ST/12 (10 November 2001).

South Africa Statement by H.E. Mr. Alexander Erwin, MP Minister of Trade and Industry, WT/MIN(01)/ST/7 (10 November 2001).

India Statement by the Honourable Murasoli Maran Minister of Commerce and Industry, WT/MIN(01)/ST/21 (10 November 2001), para. 12.

India Statement by the Honourable Murasoli Maran Minister of Commerce and Industry, WT/MIN(01)/ST/21 (10 November 2001), para. 12.

Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2 (14 November 2001).

Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2 (14 November 2001), para. 3.

Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2 (14 November 2001), para. 3.

See: Hestermeyer (2007), p. 251 with further references.

Extension of the Transition Period under Article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products, Decision of the Council for TRIPS, IP/C/73 (6 November 2015).

Extension of the Transition Period under Article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products, Decision of the Council for TRIPS, IP/C/73 (6 November 2015).

Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2 (14 November 2001), para. 5.

For a more detailed discussion and overview of literature on the subject: Charnovitz (2002) and Hestermeyer (2004); see for its status as subsequent practice within the meaning of Article 31 para. 1 b) VCLT: Vandoren and van Eeckhaute (2005), p. 780.

Hestermeyer (2007), p. 259.

Correa (2002), p. 17.

See also: Noehrenberg (2003), p. 379; Kampf (2002), p. 125; Vandoren and van Eeckhaute (2005), p. 780.

See in a similar way: Hestermeyer (2007), p. 261 who also notes that despite these clarifications much of the insecurity in the interpretation of the TRIPS agreement remains.

This was directly acknowledged by WTO Members themselves, see: Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2 (14 November 2001).

Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (1 September 2003).

For a discussion, see: Hestermeyer (2007), p. 282 et seqq.

European Communities and their Member States Concept Paper Relating to Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/339 (4 March 2002); European Communities and their Member States Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/352 (20 June 2002).

African Group in the WTO Proposal on Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/351 (24 June 2002).

United Arab Emirates Paragraph 6 of the Doha Declaration of the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/354 (24 June 2002).

Brazil Paragraph 6 of the Ministerial Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/355 (24 June 2002).

United States Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/340 (14 March 2002); United States Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/358 (9 July 2002).

TRIPS Council, Minutes of Meeting. Held in the Centre William Rappard on 25–27 June 2002, WTO Doc. IP/C/M/36 (18 July 2002), para. 1 et seqq.

United States Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/C/W/340 (14 March 2002).

See in more detail on contentious points: Abbott (2005), p. 328; Hestermeyer (2007), p. 263. See for an insider’s account of negotiations from the perspective of South Africa: Ismail (2003), p. 398 et seq.

Hestermeyer (2007), p. 264.

General Council Chairperson’s Statement, WTO Doc. JOB(03)/177 (30 August 2003).

Minutes of Meeting Held in the Centre William Rappard on 25, 26 and 30 August 2003, WT/GC/M/82 (13 November 2003), para. 29 et seqq. See for a discussion of the legal quality of the statement by the chairperson, qualifying it as an agreement relating to the treaty made between all the parties in connection with the conclusion of the treaty pursuant to Article 31 (2) (a) VCLT: Hestermeyer (2007), p. 276.

Proposal by the African Group, Bangladesh, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Haiti, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand and Venezuela, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/W/312 (4 October 2001), para. 5.

Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (1 September 2003), para. 2.

Ibid. para. 2.

Ibid. para. 3.

Ibid. para. 3.

Minutes of Meeting Held in the Centre William Rappard on 25, 26 and 30 August 2003, WT/GC/M/82 (13 November 2003), para. 36 et seqq.; 40 et seqq., 50 et seqq., and 81 et seqq.

See for the argument that the Decision “sets up a balanced and flexible mechanism, which provides for a workable framework”: Vandoren and van Eeckhaute (2005), p. 782.

Matthews (2004), p. 97 et seq.; Hestermeyer (2007), p. 271 et seqq.; for a more positive but still critical assessment, see: Abbott (2005), p. 345.

Hestermeyer (2007), p. 272.

Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (1 September 2003).

Matthews (2004), p. 96 et seq.

Hestermeyer (2007), p. 272; see in that direction also: Abbott (2005), p. 346 (who argues that effective use of the solution requires high efforts of coordination between exporters and importers).

Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (1 September 2003), para. 11.

See for a discussion of these controversies: Hestermeyer (2007), p. 273.

Cf. Abbott (2005), p. 343 et seqq.

See e.g.: Hestermeyer (2007), p. 287; Ratner (2015), p. 732 et seq.

Rwanda Notification under Paragraph 2(a) of the Decision of 30 August 2003 on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WTO Doc. IP/N/9/RWA/1 (19 July 2007); See also: WTO, WIPO, WHO (2013), p. 178.

Cf. Ratner (2015), p. 332.

Ratner (2015), p. 332 et seq.

Reportedly threats to grant compulsory licenses have enabled Brazil to reduce the price of HIV/AIDS antiretroviral drugs by up to 75% per person, see: Roffe (2006), p. 15. Developing countries that made use of compulsory licences since 2001 include India, Thailand, Malaysia, Ecuador, Indonesia, and others, see for a summary: WTO, WIPO, WHO (2013), p. 175.

Cf. Abbott (2005), p. 326.

See generally on TRIPS-plus initiatives: Mercurio (2006).

See in more detail: Kumar (2010); Mercurio (2012); Ruse-Kahn (2016), p. 288 et seqq.; see also reports provided by the ICTSD, e.g. ICTSD (2009).

Mercurio (2012), p. 399.

Council Regulation (EC) No. 1383/2003 (22 July 2003), see in particular Articles 1 and 17.

Mercurio (2012), p. 398.

For a summary of responses, see: ICTSD (2009).

See e.g. a letter of various NGOs to the director generals of the WHO and WTO (dated 18 February 2009), available at: http://​keionline.​org/​blogs/​2009/​02/​19/​ngo-letters-to-who-wto-on-dutch-seizure. Accessed 12 Sept 2020.

Minutes of Meeting, Held in the Centre William Rappard on 3 March 2009, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/59 (25 May 2009), para. 122 et seqq.

Ibid. para. 74–93.

Ibid. para. 75 et seqq.

Ibid. para. 147 et seqq.

Ibid. para. 152.

European Union and a Member State—Seizure of Generic Drugs in Transit, WT/DS409/1, Request for Consultations by Brazil (19 May 2010); European Union and a Member State—Seizure of Generic Drugs in Transit, WT/DS408/1, Request for Consultations by India (19 May 2010); for a more detailed analysis of competing legal arguments see: Mercurio (2012), p. 402 et seqq.

European Union and a Member State—Seizure of Generic Drugs in Transit, WT/DS408/1, Request for Consultations by India (19 May 2010), Request for Consultations by India, pp. 2–3.

Ibid. p. 3.

European Union and a Member State—Seizure of Generic Drugs in Transit, WT/DS409/1, Request for Consultations by Brazil (19 May 2010), Request for Consultations by Brazil, p. 4.

For some legal inquiry, see: Mercurio (2012), p. 402 et seqq.; Ruse-Kahn (2016), p. 297 et seq.

See: Mercurio (2012), pp. 416 and 425.

Ruse-Kahn (2016), p. 310 (“In sum, good arguments support a finding that an expansion of IP rights to cover as infringement the mere transit of goods without any further connection to the territory of the IP-granting state, in particular any evidence for the goods being diverted onto the domestic market, is inconsistent with Article V GATT” and “can further not be justified under Art. XX(d) GATT”).

Government of India (2011).

Government of India (2011).

EU Regulation No 608/2013 (June 2013), Recital 11.

Ruse-Kahn (2016), p. 292.

See e.g.: Article 18.76 para 5 TPP (full text available at: https://​ustr.​gov/​trade-agreements/​free-trade-agreements/​trans-pacific-partnership/​tpp-full-text).

Mercurio (2012), p. 391 and below section b).

Abbott et al. (2014), p. 7.

See on those efforts e.g.: Lutz (2015), p. 166.

For a critical appraisal see: Reichmann and Cooper Dreyfuss (2007).

See for a detailed analysis of the cycles between bilateral, regional, and multilateral forums with regard to international intellectual property law: Mercurio (2006); see also: Sell (2014), p. 52; with a particular focus on the threat of intellectual property protection in BITs for access to essential medicines: Correa (2006); Hestermeyer (2007), p. 291 et seqq.

See e.g. Sell (2011), p. 450 et seqq.; Mercurio (2006), p. 219.

Sell (2014), p. 52.

Cf. Sell (2014), p. 53.

Abbott et al. (2014), p. 8; for an in-depth analysis, see: Abbott (2006).

See e.g: Sell (2011), p. 451.

Lutz (2015), Fn. 46; see for further summaries of TRIPS-plus content also: Sell (2011), 451 et seqq.; Hestermeyer (2007), p. 290; High-Level Panel on Access to Health Technologies Report of the United Nations Secretary-General’s High-Level Panel On Access to Medicines (September 2016). http://​www.​unsgaccessmeds.​org/​final-report/​., 25 et seqq.

‘ACP-EEC Convention of Lomé’, signed on 28 February 1975 (Lomé I), replaced by Lomé II in 1979, by Lomé III in 1984 and Lomé IV in 1989. Texts of the agreements are available at: https://​publications.​europa.​eu/​en/​publication-detail/​-/​publication/​c973175b-9e22-4909-b109-0ebf1c26328/​language-en.

‘Partnership Agreement Between the Members of the African, Caribbean and Pacific Group of States of the One Part, and the European Community and its Member States, of the Other Part’, signed in Cotonou on 23 June 2000, revised text available at: http://​ec.​europa.​eu/​development/​body/​cotonou/​pdf/​agr_​rev_​en.​pdf#zoom=​100.

The Cotonou Agreement for example only contains one Article on the Protection of Intellectual Property Rights, namely Article 46.

European Commission, Directorate General for Trade (2005).

See: Jaeger (2015), p. 173 et seqq.

European Commission, Directorate General for Trade (2005), p. 2; see also: European Commission Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Global Europe Competing in the World: A Contribution to the EU’s Growth and Jobs Strategy, COM(2006) 567 final (2006), p. 8 et seqq.

European Commission, Directorate General for Trade (2005), p. 1 and 14; see also: Jaeger (2015), p. 174.

European Commission, Directorate General for Trade (2005), p. 7.

Trade, Growth and Intellectual Property—Strategy for the Protection and Enforcement of Intellectual Property Rights in Third Countries, Communication from the Commission to the European Parliament, the Council and The European Economic and Social Committee, COM(2014) 389 final (1 July 2014), p. 15.

Ibid. 10.

For an overview of negotiated EPAs and their status, see: http://​ec.​europa.​eu/​trade/​policy/​countries-and-regions/​development/​economic-partnerships/​. Accessed 12 Sept 2020.

‘EPA between CARIFORUM States and the European Community and its Member States’, Official Journal of the European Union, L289/1/3 (30 October 2008), available at: https://​eur-lex.​europa.​eu/​LexUriServ/​LexUriServ.​do?​uri=​OJ:​L:​2008:​289:​0003:​1955:​EN:​PDF.

See: ‘Economic Partnership Agreement between the East African Community Partner States and the European Union and its Member States’, (signed 16 October 2014) (consolidated text available at: http://​trade.​ec.​europa.​eu/​doclib/​html/​153845.​htm), Article 3 b) and ‘Economic Partnership Agreement between the European Union and its Member States and the SADC States’, Official Journal of the European Union, L 250/3, (16 September 2016), Article 16.

See e.g.: ‘Interim Agreement Establishing a Framework for an Economic Partnership Agreement Between the Eastern and Southern Africa States, On the One Part, and the European Community and its Member States On the Other Part’, Official Journal of the European Union, L111/2 (24 April 2012); ‘Interim Agreement with a View to an Economic Partnership Agreement Between the European Community and its Member States, on the One Part, and the Central Africa Party, of the Other Part’, Official Journal of the European Union, L 57/4 (28 February 2009), Article 58.

Jaeger (2015), 185 with reference to CEPA’s preamble and its Article 132 para. 2).

See for a number of papers dealing with these questions: Drexl et al. (2014).

See e.g. CEPA (2008) Article 139 para. 4) and 140.

See CEPA (2008) Article 147 B. (“Patents and public health”).

See also: Jaeger (2015), p. 186.

CEPA (2008) Articles 151-163 (“Enforcement of intellectual property rights”).

Directive 2004/48/EC.

For a detailed overview of CEPA’s TRIPS plus obligations, see: Jaeger (2015), p. 192.

CEPA (2008) Article 163 para. 1.

CEPA (2008) Article 163 para. 1 Fn. 2 does not cover patents but the provision stipulates that Members seek to extend the scope to other IP rights in the future.

EU-Vietnam FTA (2016) (signed but not ratified so far), Chapter on Intellectual Property, Article 2 para. 1.

See e.g. EU-Republic of Korea FTA (2010) Article 10.34; EU-Vietnam FTA (2016) Chapter on Intellectual Property, Article 8.2.

EU-Republic of Korea FTA (2010) Article 10.35; EU-Vietnam FTA (2016) Chapter on Intellectual Property, Article 8.3 para. 1 and para. 2.

EU-Republic of Korea FTA (2010) Article 10.36; EU-Vietnam FTA (2016) Chapter on Intellectual Property, Article 9.

EU-Republic of Korea FTA (2010) Article 10.41-10.69; EU-Vietnam FTA (2016) Chapter on Intellectual Property, Article 12–30.

EU-Republic of Korea FTA (2010) Article 10.54.

EU-Republic of Korea FTA (2010) Article 10.69. More limited provisions on border enforcement can be found in: EU-Vietnam FTA (2016) Article 24–28.

Abbott (2014), p. 402.

See on the origins of ACTA, the process of its negotiation, and many legal and factual questions involved e.g.: the collected papers in: Roffe and Seuba (2014) and Katz and Hinze (2009).

The final text of the TPP is available at: http://​bilaterals.​org/​tpp-trans-pacific-partnership?​lang=​en; this text is not to be confused with the new text of the Comprehensive and Progressive TPP (CPTPP) negotiated without United States participation, which entered into force on 20 December 2018.

Primo Braga (2017).

See among numerous critical appraisals by NGOs, e.g.: UNITAID (2014); for scholarly critiques, see e.g.: Bhala (2014).

Office of the United States Trade Representative Letter to the TPP Depository/Withdrawal from TPP (January 30, 2017). https://​ustr.​gov. Accessed 11 September 2020.

TPP Article 18.26 foresees a term of no less than 10 years, whereas TRIPS Article 18 only foresees a minimum term of 7 years.

TPP Article 18.63 foresees a minimum term of protection of 70 years after the author’s death, whereas TRIPS Article 12 only foresees a minimum term of 50 years.

TPP Article 18.47 (Agricultural Chemical Products) and Article 18.50 (Pharmaceutical Products).

TPP Article 18.51.

TPP Article 18.46 and 18.48.

TPP Article 18.6 and 18.50 para. 3.

Sell (2014), p. 53.

Cf. Abbott (2014), p. 399 et seq.

Cf. Jaeger (2015), p. 200 et seqq.

See: Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010); Minutes of Meeting Held in the Centre William Rappard on 26–27 October 2010, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/64 (17 February 2011), para. 440 et seqq.; Minutes of Meeting Held in the Centre William Rappard on 24–25 October and 17 November 2011, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/67 (15 February 2012), para. 456 et seqq.; Minutes of Meeting Held in the Centre William Rappard on 28–29 February 2012, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/69 (15 May 2012), para. 230 et seqq.

ICTSD (2010).

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), see for the statement by Brazil : para. 317 et seq.; see for the statement by South Africa : para. 328 et seqq.

See for an initial summary by China: Minutes of Meeting, Held in the Centre William Rappard on 8-9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), para. 252; see for a broader explanation of each point para. 253–258.

See also Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010); statement of India in para. 265.

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), statement of China in para. 331; statement of India in para. 264; statement of Egypt para. 298 et seq.

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), statement of India in para. 271; see also Statement of Brazil in para. 317 et seq.; Statement by Chile in para. 306 et seq.

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), statement of India in para. 267.

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), statement of China in para. 331.

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), US statement in para. 278 et seqq.; statement by the EU in para. 326 et seqq.

See: Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), US statement in para. 284; Statement of Korea in para. 287; statement by Japan in para. 295.

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), US statement in para. 287.

See Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), for the position of the US see para. 280 et seq,; for the position of Canada see para. 301; for the position of Switzerland see para. 310; for the position of the EU, see para. 326.

Minutes of Meeting, Held in the Centre William Rappard on 8-9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), US statement in para. 285.

Ibid.

Ibid. para. 284.

Minutes of Meeting, Held in the Centre William Rappard on 8–9 June 2010, WTO, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/63 (4 October 2010), US Statement in para. 285; statement by Switzerland in para. 315; Statement by the EU in para. 326.

See: Minutes of Meeting Held in the Centre William Rappard on 26–27 October 2010, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/64 (17 February 2011), para. 440 et seqq.; Minutes of Meeting Held in the Centre William Rappard on 24–25 October and 17 November 2011, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/67 (15 February 2012), para. 456 et seqq.; Minutes of Meeting Held in the Centre William Rappard on 28-29 February 2012, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/69 (15 May 2012), para. 230 et seqq.

BRICS Joint Communiqué of the BRICS Member States on Health on the Sidelines of the 69th World Health Assembly, Geneva (24 May 2016).

BRICS Joint Communiqué of the BRICS Member States on Health on the Sidelines of the 69th World Health Assembly, Geneva (24 May 2016) (highlighting added).

High-Level Panel on Access to Health Technologies Report of the United Nations Secretary-General's High-Level Panel On Access to Medicines (September 2016). http://​www.​unsgaccessmeds.​org/​final-report/​.

Minutes of the Meeting held in the Centre William Rappard on 8–9 November 2016, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/83/Add. 1 (2 December 2016), para. 8. Each State also issued a supportive statement to the goal of using TRIPS flexibilities and promoting access to medicines, see statement of India (para. 584); statement of Brazil (para. 590 et seqq.); statement of South Africa (para. 597 et seqq.); statement of China (para. 607 et seqq.).

Minutes of the Meeting held in the Centre William Rappard on 8–9 November 2016, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/83/Add. 1 (2 December 2016), statement of India in para. 584.

Minutes of the Meeting held in the Centre William Rappard on 8-9 November 2016, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/83/Add. 1 (2 December 2016), para. 585.

High-Level Panel on Access to Health Technologies Report of the United Nations Secretary-General's High-Level Panel On Access to Medicines (September 2016). http://​www.​unsgaccessmeds.​org/​final-report/​., 22 et seqq.

Minutes of the Meeting held in the Centre William Rappard on 8-9 November 2016, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/83/Add. 1 (2 December 2016), statement of Switzerland in para. 645 et seqq.; statement of Japan in para. 656 et seqq.

Minutes of the Meeting held in the Centre William Rappard on 8-9 November 2016, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/83/Add. 1 (2 December 2016), statement by the United States, para. 618–624.

Minutes of the Meeting held in the Centre William Rappard on 8–9 November 2016, Council for Trade-Related Aspects of Intellectual Property Rights, WTO Doc. IP/C/M/83/Add. 1 (2 December 2016), statement by the European Union, para. 632.

A follow-up discussion took place in March 2017, however did not add much to arguments summarized above and ultimately led States to discontinue the discussion, see: Council for Trade-Related Aspects of Intellectual Property Rights: Minutes of Meeting, Held in the Centre William Rappard on 1-2 March 2017,, IP/C/M/85/Add.1 (7 June 2017), 27 et seqq.

See: Ruse-Kahn (2016), p. 113 et seqq.

This assumption can be based on the agreement’s wording but also on the historical context and the negotiation history, see: Ruse-Kahn (2016), p. 114 et seqq.

Carvalho (2010), p. 110; Ruse-Kahn (2016), p. 116 with further references.

Ruse-Kahn (2016), p. 116 et seq.

See: Article 30 para. 4 b) VCLT).

Ruse-Kahn (2016), p. 117 et seq.

See generally Ruse-Kahn (2016), p. 119; see for a more detailed analysis of maximum standards also: Grosse Ruse-Kahn (2009), pp. 67–73.

Highlighting not in the original.

See: Ruse-Kahn (2016), p. 119.

See: Ruse-Kahn (2016), p. 119.

Ruse-Kahn (2016), p. 119.

Ruse-Kahn (2016), p. 125.

Ruse-Kahn (2016), p. 125.

Ruse-Kahn (2016), p. 125.

For a list of recent US FTAs, see: https://​ustr.​gov/​trade-agreements/​free-trade-agreements.

EPA between the European Union and its Member States and the SADC States, Official Journal of the European Union, L 250/3 (16 September 2016) Article 16.

‘South Africa - EU Agreement on Trade, Development and Cooperation’, Official Journal of the European Communities, L 311/3 (4 December 1999), Article 46. While containing the far-reaching formulation that Parties “shall ensure adequate and effective protection of intellectual property rights in conformity with the highest international standards” (Art. 46 para. 1), EC representatives have stated, regarding a similar provision in another treaty, that the formulation does not seek to dynamically incorporate the respective highest international standard but rather is declaratory in character, see: Association Agreement between the European Communities and Chile, WTO Committee on Regional Trade Agreements, Questions and Replies, WT/REG164/5 (20 June 2006), Answer 34.

See e.g. Frontline (2013).

For an overview from the EU’s perspective, see: http://​ec.​europa.​eu/​trade/​policy/​countries-and-regions/​countries/​india/​.

See: Overview of FTA and other Trade Negotiations, available at: http://​trade.​ec.​europa.​eu/​doclib/​docs/​2006/​december/​tradoc_​118238.​pdf. Accessed: 11 Sept 2020.

A leaked text as of February 2018 is available online at: http://​bilaterals.​org/​IMG/​pdf/​iprs.​pdf. Accessed: 11 Sept 2020; later the EU published a slightly amended version (as of June 2019) available online at: https://​trade.​ec.​europa.​eu/​doclib/​press/​index.​cfm?​id=​2048 (EU-Mercousur FTA draft).

See e.g.: Ermert (2018).

EU-Mercosur FTA (leaked draft as of 27 February 2018) Article 13.

EU-Mercosur FTA draft, Sub-Section 7 (“Protection of Undisclosed Information”).

EU-Mercosur FTA draft Section C.

Costa Chaves et al. (2017), p. 8 et seqq.

Costa Chaves et al. (2017), p. 10.

For an overview, see: http://​www.​sice.​oas.​org/​ctyindex/​BRZ/​BRZagreements_​e.​asp. Accessed: 11 Sept 2020.

See e.g.: Mercosur-Egypt FTA (2017); Mercosur-Israel FTA (2007).

‘Comprehensive Economic Cooperation Agreement Between the Republic of India and the Republic of Singapore’ (2005). The chapter on intellectual property co-operation in the India-Singapore CEPA only contains a declaratory statement that Parties engage in mutual cooperation on the issue but no substantial standards, see Articles 11.1 and 11.2.

‘Comprehensive Economic Partnership Agreement Between the Republic of India and the Republic of Korea’ (2009) Article 12.2 affirms the rights and obligations of the TRIPS agreement and Article 12.3 states, that parties may provide more extensive intellectual property protection but are not required to do so by the CEPA.

‘Comprehensive Economic Partnership Agreement Between Japan and the Republic of India’ (2011), includes a more detailed chapter on intellectual property (Chapter 9) with eight Articles. However, the General Provision in Article 102 points out that intellectual property shall be protected “in accordance with the provisions of the TRIPS Agreement” and the definition of intellectual property is also linked to the categories provided under TRIPS. Some provisions then provide certain adjustments but cannot be considered as substantial TRIPS-plus standards. Often those provisions also refer to the TRIPS agreement (e.g.: Article 107 and Art. 109).

For an overview of all trade agreements and ongoing negotiations, see: https://​www.​thedti.​gov.​za/​trade_​investment/​ited_​trade_​agreement.​jsp. Accessed: 11 Sept 2020.

The SADC Treaty (2000) simply reiterates Members commitment to TRIPS (Article 24); the SACU-EFTA FTA contains a single provision on IP (Article 26) which commits Member States to the protection of IP rights but which does not extend TRIPS rights and obligations.

See for an analysis also: Zhang (2016).

Most of the earlier FTAs that include provisions on IP take TRIPS as a benchmark and only reaffirm obligations stemming from this agreement, see e.g.: China-Chile FTA (2005) Article 111 para. 1; China-Pakistan FTA (2006) Article 10 and 46; China-New Zealand FTA (2008) Article 161; but see also: China-Iceland FTA (2013) Article 64.

China-Switzerland FTA (2013).

Australia-China FTA (2015).

China-Republic of Korea FTA (2015).

For example, the China-Korea FTA (2015) features 24 articles on IP and the China-Australia FTA (2015) 30 articles.

See e.g. Australia-China FTA (2015) Article 11.16 (Plant Breeders’ Rights); Article 11.17 para. 2 (Genetic Resources, Traditional Knowledge and Folklore); China-Switzerland FTA (2014) Article 11.9 (Genetic Resources and Traditional Knowledge); China-Republic of Korea FTA (2015) Article 15.16 (Utility Model); Article 15.17 (Genetic Resources, Traditional Knowledge and Folklore).

See: China-Republic of Korea FTA (2015) Article 15.19 (“The Parties shall protect undisclosed information in accordance with Article 39 of the TRIPS Agreement.”) see more detailed but still rather restrictive: Australia-China FTA (2015) Article 11.18.

See: China-Switzerland FTA (2014) Article 11.11 para. 2.

China-Switzerland FTA (2014) Article 11.5.

Australia-China FTA (2015) Article 11.1 para. d); see also: China-Republic of Korea FTA (2015) Article 15.1 para. 2; China-Switzerland FTA (2014) Article 11.1 para. 4.

Cf. Abbott (2014), p. 392.

See in that regard: Sell (2014), p. 60.

Narlikar (2018).