Abstract This chapter examines interactions between environmental sustainability provisions in free trade agreements (FTAs) and environmental sustainability developments in the World Trade Organization (WTO). While most FTA sustainability provisions remain ‘defensive’, the ‘offensive’ sustainability provisions included in FTAs that set sustainable development as a primary goal using trade as a tool to achieve it are increasing. Insufficient in themselves, sustainability provisions in FTAs must be supplemented by multilateral or plurilateral trade and sustainability instruments in the WTO, given the need for global collective effort to achieve the Sustainable Development Goals (SDGs). This chapter argues that some ‘defensive’ sustainability provisions in FTAs reflect and build upon WTO dispute settlement practice; other ‘offensive’ sustainability provisions that do not exist in the WTO have been invented in some FTAs. It discusses how these FTA environmental sustainability provisions have promoted relevant initiatives in the WTO and whether they constitute building blocks for multilateral or plurilateral sustainability provisions.

Abstract The chapter provides an overview of the main legal structures that govern Pacific trade in the Third Regionalism. It offers insight into the evolution of the Association of Southeast Asian Nations (ASEAN) Economic Community, as well as ASEAN’s external agreements with Asia-Pacific economies including China, India, Japan, Korea, Hong Kong, Australia and New Zealand. It also discusses legal and policy considerations for the Regional Comprehensive Economic Partnership (RCEP) based on ASEAN Plus One agreements. Furthermore, by focusing on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the chapter analyses key issues such as rules of origin, market access, electronic commerce, state-owned enterprises and currency manipulation. It is imperative to understand these critical developments of ASEAN, the CPTPP and the RCEP amid trade protectionism and the COVID-19 pandemic.

Pasha L. Hsieh's book sees the entry into force of the Regional Comprehensive Economic Partnership Agreement (hereinafter "RCEP") as well as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter "CPTPP") as evidence of the emergence of "new Asian regionalism." He argues that the "new Asian regionalism has emerged amid the third wave of global regionalism and contributed to the New Regional Economic Order." What makes his book unique is that a legal perspective underlies his analysis throughout the book. He envisages that the Free Trade Area of the Asia-Pacific (hereinafter "FTAAP") can be brought into reality through pathways of the CPTPP and the RCEP as well as the trade and investment agreements between, on one hand, Singapore and Vietnam, and the EU on the other. It should not be forgotten that the political and economic landscape has dramatically changed since the idea of the FTAAP was first officially endorsed in 2006. One must ask whether the goal that was envisioned at that time remains valid in today's world. Nonetheless, his book serves as an essential roadmap to help us understand and navigate the complex landscape of regionalism.

The chapter provides an overview of the main legal structures that govern Pacific trade in the Third Regionalism. It offers insight into the evolution of the Association of Southeast Asian Nations (ASEAN) Economic Community, as well as ASEAN’s external agreements with Asia-Pacific economies including China, India, Japan, Korea, Hong Kong, Australia and New Zealand. It also discusses legal and policy considerations for the Regional Comprehensive Economic Partnership (RCEP) based on ASEAN Plus One agreements. Furthermore, by focusing on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the chapter analyses key issues such as rules of origin, market access, electronic commerce, state-owned enterprises and currency manipulation. It is imperative to understand these critical developments of ASEAN, the CPTPP and the RCEP amid trade protectionism and the COVID-19 pandemic.

Since the issuance of a joint statement in January 2019, seventy-eight World Trade Organization (WTO) members have confirmed their intention to commence WTO negotiations on trade-related aspects of electronic commerce. There is a growing expectation that a new agreement on trade-related aspects of electronic commerce (TREC Agreement) will be adopted in the not-so-distant future. One key question that has been left out in the process of negotiating the TREC Agreement is how disputes concerning electronic commerce should be settled. This chapter points out that digital trade disputes arising under the proposed TREC Agreement will likely differ from conventional trade disputes arising under the WTO agreements in terms of the diversity of stakeholders and the nature of the balance between trade and non-trade values and that the rules and procedures of the WTO Dispute Settlement Understanding (DSU) may not properly apply to the former. It argues that special or additional dispute settlement rules and procedures should be incorporated into the TREC Agreement to fill those gaps in the existing DSU with regard to the handling of digital trade disputes.

The rules of the SPS Chapter confirm and reinforce the rules under the WTO SPS Agreement by incorporating not only relevant provisions of the WTO SPS Agreement but also decisions of the WTO SPS Committee. Although most of the “SPS Agreement plus” rules are procedural in nature, they are expected to contribute to the enhanced governance of SPS measures in the Asia-Pacific region. In particular, the SPS Chapter would improve the transparency regarding the adoption and implementation of SPS measures. While the SPS Chapter requires improved transparency among the TPP parties, TPP parties may consider it more efficient and appropriate to take the same transparency measures to non-parties as well. If they apply the transparency measures required by the SPS Chapter on a nondiscriminatory basis, the impact of the SPS Chapter would extend beyond the region. Moreover, if the SPS Chapter is successfully implemented, it could lead to the creation of new rules on SPS measures under other FTAs and the WTO.

This concept paper briefly reviews the problems with the current WTO dispute settlement and envisions a new trade dispute settlement for trade remedy disputes. The objective of the paper is not to propose short-term fixes to solve the problems but to provide a conceptual basis for the new trade dispute settlement procedures. For that purpose, the paper seeks to draw insights from other dispute settlement procedures.

The United States criticizes the Appellate Body for 'making law' by interpreting and applying the World Trade Organization (WTO) agreements in disregard of the intention of WTO members. The criticism of the United States is not without legitimate basis in that Members have few tools with which they may weigh in on the interpretation of the WTO agreements, even if the Appellate Body makes an erroneous interpretation. As much as the Appellate Body's contribution to the security and predictability of the multilateral trading system warrants praise, the dysfunction of legislative and political mechanisms to counterbalance the growing de facto 'authority' of the Appellate Body should be a cause for concern. Against this background, this article proposes a new mechanism that would allow Members to disagree with interpretations by the Appellate Body and pronounce their own interpretations of the WTO agreements. The mechanism would be built upon 'interpretative declarations.'

The United States has been blocking consensus of the Members of the World Trade Organization on the appointment and reappointment of Appellate Body members by raising several concerns with the practice of the Appellate Body. At several recent meetings of the Dispute Settlement Body, the United States has outlined in detail its specific concerns, one of which pertains to the interpretative authority of the Appellate Body. More specifically, the United States criticizes the Appellate Body for treating its previous interpretations as "binding and controlling" and for insisting that they must serve as precedent "absent cogent reasons." This chapter analyzes the criticism and points out seven specific errors in it. It also argues that the United States wrongly or deliberately alters what the Appellate Body in fact stated in the past decisions with a view to discrediting the Appellate Body. Finally, it warns that the Appellate Body impasse would not be broken, as long as the United States maintains its erroneous views.

Philip Morris Asia initiated an investment arbitration against Australia with respect to Australia’s tobacco plain packaging measures only a few months after it made its investment in Australia. The initiation of the arbitration raised a concern that the scope of protection under investment agreements and investment arbitration may be manipulated by multinational corporations. The tribunal in this case dismissed all the claims of Philip Morris Asia as inadmissible because it considered that the initiation of the arbitration constituted an abuse of process. While the decision is a positive development of law, at least from the perspective of respondent States, the tribunal did not sufficiently analyze the source and content of the principle of abuse of process. Against this background, this article seeks to clarify what the principle of abuse of process means under general international law and how it should be applied in investment arbitration. For this purpose, this article first examines the application of the principle by international judicial and quasi-judicial bodies other than investment arbitration. It then discusses how the principle should be applied in investment arbitration in light of its particular nature.

Japan has been lagging far behind other jurisdictions in Asia such as Hong Kong and Singapore, which have been widely recognized as international arbitration hubs. However, efforts have been made to transform Japanese cities into new arbitration hubs.

This paper is inspired by Philip Morris v. Uruguay, where the majority of the tribunal and the dissenting arbitrator diverge on whether `margin of appreciation,' which has long been applied by the European Court of Human Rights (ECtHR), is applicable to investment arbitration. First, the paper points out that both the majority and the dissent wrongly consider `margin of appreciation' itself as a prescriptive standard of review that requires the ECtHR to accord deference, but that it is rather a description of standards of review that are provided in certain provisions of the European Convention on Human Rights (ECHR). In particular, the paper argues that it has been used as an indicator of how much deference is required by certain provisions of the ECHR under certain circumstances. Then, after discussing why it has hardly been used outside the ECtHR, the paper discusses whether it is applicable to investment arbitration.

As Professor Nakagawa's chapter rightly points out, natural resources have "unique economic characteristics" that require a special treatment under international trade law. In particular, their exhaustible nature justifies the adoption of restrictions on their exports that are otherwise inconsistent with international trade law, for the purpose of conservation. For example, an exporting country may claim that it is justified in adopting quantitative restrictions on the exports of natural gas in order to preserve gas reserves in its territory. Or, it may try to justify the imposition of export duties on a certain raw material in order to ensure that the material is sufficiently supplied to the domestic user industry.

This chapter explores the usefulness of a managerial model of governance to resolve sanitary and phytosanitary issues and secure compliance with the SPS Agreement as an alternative or supplementary to an enforcement model of governance. It argues that the managerial model favours informal and nonbinding methods over formal and binding ones. Among the several managerial methods provided for in the SPS Agreement, it focuses on the ad hoc consultations under Article 12.2. While further improvements may be possible, the ad hoc consultations have advantages, when compared to the panel and Appellate Body review, in that they: (i) enable long-term monitoring; (ii) facilitate collaborative interactions between interested Members; (iii) give scientific experts a proactive role; (iv) allow developing country Members to participate in the WTO process; (v) assist developing country Members in implementing the SPS Agreement; (vi) pay proper deference to Members’ sovereign right to adopt and enforce public health policy.

Countries may adopt conflicting policies, such as food safety regulations, based on conflicting views on the 'scientific truth', and trade or investment disputes may arise between countries claiming different 'scientific truths'. If such a dispute is referred to the World Trade Organization (WTO) or investment arbitration, a panel or arbitral tribunal faces the question of what the 'scientific truth' really is. This article reveals that a WTO panel is required to apply a deferential standard of review in the sense that the panel should refrain from making its own conclusion on the 'scientific truth' and limit itself to examining the reasonableness of the 'truth' claimed by the parties. In investment arbitration, while the deferential standard of review is hardly discussed explicitly, some arbitral tribunals have recognized the need to pay deference to the host state's decisions regarding the 'scientific truth'. This article also argues why the deferential standard of review should be applied.