Building Legal Capacity for a More Inclusive Globalization Barriers to and Best Practices for Integrating Developing Countries Into Global Economic Regulation

Building Legal Capacity for a More Inclusive Globalization Barriers to and Best Practices for Integrating Developing Countries into Global Economic Regulation Edited by Joost Pauwelyn and Mengyi Wang A CTEI book About the publisher The Graduate Institute The Graduate Institute of International and Development Studies is an institution of research and higher education dedicated to the study of world affairs, with a particular emphasis on the cross-cutting fields of international relations and development issues. Through core activities, the Institute aims to promote international cooperation and make a contribution to the progress of developing societies. The Institute is a cosmopolitan community located in the heart of Geneva, an international city and a centre of global governance. By intensely engaging with international organisations, NGO’s, governments and multinational companies, the Institute participates in global discussions and prepares future policy-makers to lead tomorrow’s world. Web: http://graduateinstitute.ch/ Centre for Trade and Economic Integration The Centre for Trade and Economic Integration (CTEI) is the Graduate Institute's Centre of Excellence for research on international trade. CTEI fosters world-class multidisciplinary scholarship aimed at developing solutions to problems facing the international trade system and economic integration more generally. It works in association with public sector and private sector actors, giving special prominence to Geneva-based International Organisations. The Centre also bridges gaps between the scholarly and policymaking communities through outreach and training activities in Geneva. http://www.graduateinstitute.ch/ctei ISBN: 978-2-940600-08-3 Imprint: The Graduate Institute, Geneva © INSTITUT DE HAUTES ÉTUDES INTERNATIONALES ET DU DÉVELOPPEMENT GRADUATE INSTITUTE OF INTERNATIONAL AND DEVELOPMENT STUDIES Case postale 1672, 1211 Genève 1 T +41 22 908 57 00 ©The Graduate Institute, Geneva 2019 Acknowledgements This book was made possible thanks to the NPRP grant # [NPRP 7-1815-5-272] from the Qatar National Research Fund (a member of Qatar Foundation). Preface International economic law in its broadest sense, from basic trade agreements to sophisticated regulatory regimes, develops gradually in the wake of deepening economic integration. Led at first by technological improvements in transport which reduced the costs of transporting goods, and later by improvements in communications which facilitated cross border investment, economic integration is likely to increase as digital technology evolves. Developing countries are party to a multitude of international agreements in the field of trade, investment and economic cooperation. The negotiation, implementation and settlement of disputes under these treaties are increasingly complex. To actively engage in and benefit from these regimes and to have a voice, developing countries – as well as smaller stakeholders in developed countries – need to build legal capacity. Capacity building to benefit from these rules is essential to making globalization inclusive. As economic integration deepens and global economic regulation continues to evolve, making a way through this maze becomes an art. How to build capacity with limited resources is the main question addressed by the contributors to this book. Capacity building in this area is not a project with an end in sight – the gap between those that are knowledgeable and those that need to catch up may even grow, so the wealth of insights gathered in this book will be useful for some time to come. This book is a direct output of the QNRF-supported research project Legal Innovation to Empower Development; however, it had its genesis at an incubator workshop on Technical Cooperation and Capacity Building in International Economic Law, Negotiations and Dispute Settlement, supported by the Swiss Network for International Studies, held at the Graduate Institute in 2014. In addition to the contributors to this book, a number of people have played a role in ensuring the success of the project. These include Fadi Makki, Sarah Mathew and Valbona Zenku at Georgetown Qatar; Talal Abdulla Al-Emadi, Francis Botchway, Rafael Brown and Jon Truby at Qatar University; Richard Baldwin, Ioana Motoc, Florencia Sarmiento and Angelica Zanninelli at the Graduate Institute; Pieter Gunst, President and Co-Founder of Legal.io; and seminar participants at the workshops on capacity building held in Doha and Geneva. Theresa Carpenter Executive Director Centre for Trade and Economic Integration The Graduate Institute, Geneva Building Legal Capacity for a More Inclusive Globalization Contents i. 1 Building Legal Capacity for a More Inclusive Globalization: Introduction and Summary of Findings Joost Pauwelyn and Mengyi Wang Part I: Capacity Needs and Constraints: Historical Evolution and State-of- Play ii. 1 Strategies for Developing Countries in iii. 9 Multilateral Trade Negotiations at the World Trade Organization Nicolas Lamp iv. 2 Can International Investment Agreements Be v. 31 Instruments of Sustainable Development? Systemic Capacity Challenges for Developing Countries J. Anthony VanDuzer vi. 3 Ploughing Away Capacity Constraints in vii. 47 Global Agri-food Trade Mengyi Wang and Ching-Fu Lin Part II: Capacity Building Initiatives: Lessons Learned and Outstanding Challenges viii. 4 The ACWL’s Contribution to Enhancing Legal ix. 65 Capacity of Developing Countries Jan Bohanes and Christian Vidal-Leon x. 5 The TradeLab Network of Legal Clinics: xi. 83 Capacity Building for a More Inclusive Globalization Joost Pauwelyn and Theresa Carpenter v xii. 6 Establishing an International Advisory Centre xiii. 99 on Investment Disputes Anna Joubin-Bret Part III: Country Specific Experiences: In Search of Best Practice xiv. 7 Lessons from Capacity Building in China xv. 121 Henry Gao and Gregory Shaffer xvi. 8 India and the World Trade Organization: xvii. 135 Charting a New Model of Trade Law Capacity Building James J. Nedumpara and Amrita Bahri xviii. 9 The Participation of Arab Countries in the xix. 153 World Trade Organization: Using the Multilateral Trading System in the face of capacity constraints Said El Hachimi xx. 10 Trade Related Capacity Building Measures in xxi. 167 African LDCs and the Paradox of the Efficiency–Effectiveness Dichotomy Tsotetsi Makong and Thokozani Ngwira Part IV: Concluding Remarks xxii. 11 In Search of a More Balanced International xxiii. 193 Economic Order – Lessons from International Investment Law Sergio Puig xxiv. 12 Building Legal Capacity: Opportunities, xxv. 195 Challenges and Constraints Marc L. Busch and Inu Manak Building Legal Capacity for a More Inclusive Globalization List of tables Table 5.1: Status of TradeLab Clinics & Pilot Runs with Start Date and Selected Academic Supervisors, as of September 2018 Table 5.2: Examples of TradeLab Beneficiaries Table 5.3: Most Downloaded TradeLab Reports Table 9.1: Exports of All Arab Countries in US$ millions and their shares in World Exports Table 9.2: Tariff Profiles of Arab Countries Table 9.3: Chairpersonship of Main WTO Bodies, 1995-2015 Table 9.4: Involvement of Arab countries in WTO dispute settlement Table 10.1: Capacity building activities by multilateral organizations vii List of figures Figure 1.1: Examples of Negotiating Strategies used by Developing Countries in the Doha Round and its Aftermath Figure 5.1: The TradeLab Logo Figure 5.2: Elements of the TradeLab Network Figure 5.3: The TradeLab Network Figure 5.4: Main Types of TradeLab Projects Figure 5.5: Typical TradeLab Clinic Flowchart Figure 5.6: The TradeLab Process: From Question to Output Figure 5.7: Nationality of Students Trained in TradeLab Clinics, as of September 2018 Figure 5.8: TradeLab Beneficiaries by Type, as of September 2018 Figure 5.9: TradeLab Government Beneficiaries by Region, as of September 2018 Figure 8.1: India’s Trade Disputes Figure 9.1: Chairpersonships of Subsidiary Bodies of the WTO General Council Figure 10.1: Survey of Alumni and Employers Building Legal Capacity for a More Inclusive Globalization Contributors Dr Amrita Bahri is an Assistant Professor of Law at ITAM University. She is an international trade law scholar with the experience of practice, teaching and research. She is the Co-Chairholder of WTO Chair Programme and the Deputy Director for the Centre of International Economic Law at ITAM. Amrita has published on the issues of international trade law, dispute settlement and capacity building in developing countries. Her recent articles feature in the prestigious journals such as the Journal of World Trade and Trade, Law & Development. Her other works, in the form of a book and book chapters, are published by leading publishers such as Cambridge University Press and Edward Elgar. Amrita is the Founding Member of the South Asian International Economic Law Network (SAIELN) and the Member of Society of International Economic Law (SIEL). She earned her Ph.D. in International Trade Law from University of Birmingham and an LL.M in International Business Law from London School of Economics. Jan Bohanes is a Senior Counsel at the Advisory Centre on WTO Law. Previously, he was a member of the Secretariat of the WTO’s Appellate Body from 2002 to 2006. He also participated in the WTO’s technical cooperation and training activities both in Geneva and abroad. Upon leaving the WTO, Mr. Bohanes worked for several years as associate attorney in the Geneva office of Sidley Austin LLP. Mr. Bohanes advised both governments and commercial stakeholders

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