It's not just about China. From the Washington Post:Yet another reason to have some more detailed international standards on exchange rates, so as to avoid these kinds of suspicions.
For those of you who get excited about PPMs (process and production methods), on one side or the other, I just came across two such issues.
1. In a policy paper about sustainability standards for biofuel products, economists Harry de Gorter and David R. Just make the following point:
28. Are there any issues regarding international trade law and biofuel sustainability standards?
There are several. A sustainability standard means nonsustainable ethanol is treated less favorably than sustainable ethanol. This is problematic because the WTO prohibits members from discriminating between domestic and imported products based on the processes or production methods used to produce them. Imposing a higher tax on imported nonsustainable ethanol, as compared to a lower tax (because of the tax credit) on domestic sustainable ethanol blended with gasoline—a domestic-like product—would seem to violate General Agreement on Trade and Tariffs Article III(2)’s first sentence. The ethanol products, qua products, are the same, but they are taxed differently.
Privileged treatment for the blender’s tax credit would probably also be discriminatory and violate GATT ’94, Article I, if ethanol imported from at least one other country qualified for the tax credit. The U.S. would then be guilty of discriminating between like ethanol imported into the United States from two different countries, a violation of the most-favored nation principle of Article I.
The biofuel sustainability mandate runs afoul of GATT Article XI, which prohibits all quantitative restrictions on imports. Because the mandate’s sustainability criterion would seem to be an internal regulation that discriminates against unsustainable ethanol, it might seem to violate Article III(4)’s prohibition on discriminatory regulations. Since the regulation (the sustainability criterion attached to the mandate) regulates the process of making the ethanol and not the qualities of the ethanol itself, however, WTO decisions have indicated that the discrimination provisions of Article III(4) do not apply. Instead, because the sustainability criterion would operate to reduce the flow of unsustainable ethanol into the United States, it would constitute a quantitative restriction on unsustainable ethanol imports and, accordingly, violate Article XI.
2. A Vancouver Sun article on possible U.S. restrictions on "dirty" oil from Canada notes :
Attempts by U.S. politicians to curb imports of oilsands and "dirty" energy from Canada could face a challenge under World Trade Organization rules, the author of a survey into U.S. protectionism said Monday.
According to Helmut Mach, director of the Western Centre for Economic Research at the University of Alberta School of Business, American attempts to restrict imports of higher-carbon fuels such as oilsands could be illegal under international trade rules because it would discriminate against how a particular product — in this case oil — is manufactured.
In that sense, climate bills before the U.S. Senate and Congress could be construed as protectionist measures, Mach said in an interview.
"Normally, under international trade rules, how a product is produced is irrelevant," he said. "PPM's (process and production methods) are not supposed to be a determining factor in purchasing decisions. It has the potential to become very controversial and complicated factor in the climate-change debate."
I did a recent post about a job opening at the Advisory Centre on WTO Law, in which I said that these opportunities don't come along very often, so anyone who might possibly be interested should apply. Well, here's another job just like that:
The Secretariat of the WTO is seeking to fill the position of Director in the Legal Affairs Division. Serving staff members interested in the position are also invited to apply.
The incumbent will head the Legal Affairs Division, which is responsible for providing legal advice and related services to the Office of the Director-General and the WTO Secretariat as a whole; to the Dispute Settlement Body and, upon request, to other WTO bodies; to dispute settlement panels and arbitral bodies; to delegations to the WTO; and, as appropriate, to the general public. Specific responsibilities will include the following duties:
1. Managing the overall operation of the division, including assigning and reviewing the work of the approximately one dozen other permanent lawyers in the division and ensuring that the Division's administrative practices conform with WTO rules and regulations.
2. Providing advice on WTO law and practice to the Director-General and other divisions of the WTO Secretariat; to the Dispute Settlement Body and, as requested, to WTO committees and working groups; to dispute settlement panels and arbitral bodies; to delegations to the WTO; and, as appropriate, to the public. Also responsible for reviewing, as the need arises, the advice given by others in the organization on the law of the international civil service and on privileges and immunities of the WTO Secretariat.
3. Overseeing participation of the division in the organization's extensive teaching and training programmes, with a particular focus on WTO dispute settlement; such oversight also extends to the preparation of teaching and training materials to this end, including for e-training.
4. Overseeing the preparation and updating of reference materials on WTO law and practice, including the WTO Analytical Index - WTO Law and Practice; WTO Status of Legal Instruments; WTO Dispute Settlement: One-Page Case Summaries; as well as the preparation of inputs on WTO legal developments for other WTO publications.
5. Assisting the WTO Membership in giving legal effect to any agreements they may negotiate and conclude within the legal framework of the WTO.
6. Supervising the operation of the Dispute Settlement Registry.
7. Supervising the operation of the WTO Depository.
8. Overseeing the operation of the Division's extensive legal internship programme.
9. Representing the DG and the WTO Secretariat in various public and academic functions in Geneva and abroad that address WTO dispute settlement matters and legal issues of relevance to the WTO.
10. Undertaking any other tasks that may be assigned by the Director General.
In addition to a basic university degree, proven theoretical knowledge and/or professional expertise equivalent to an advanced university degree in law, with extensive knowledge of international trade law and solid knowledge of public international law. Should be licensed or be eligible to be licensed to practice law in at least one municipal jurisdiction.
Excellent knowledge of economic and legal issues relating to the WTO. Knowledge of and practical experience with other dispute resolution mechanisms, at national or international level, would also be an asset.
At least fifteen years as a legal practitioner in either the public or private sectors, including considerable practical experience in trade law. Extensive management experience with broad supervisory responsibilities over a dozen or more people is highly desirable, and a proven ability to interact and work with other highly qualified legal professionals is a must. Ability to work harmoniously with senior management and to cooperate effectively with one's peers in a diverse international setting is important.
Fluent knowledge of English (including legal English) is essential, including a demonstrated ability to write accurately, concisely and quickly, and to review and edit effectively the work of other lawyers. A good knowledge of French and/or Spanish would also be an important asset.
This position will be vacant as of 1 September 2010 further to the retirement of the incumbent.
The article doesn't explain the measure in much detail, but it seems likely that a local content requirement for equipment would violate GATT Article III:4. The more difficult issue might be the defense. The argument set out in the quoted portion of the article seems to be something like this: Due to the higher cost of solar/wind power, the only way the government can enact a policy favoring these power sources is to use protectionism to give some benefits to local companies, so as to generate support for the policy.
I see the point, but it's hard to imagine such a defense being accepted by a WTO panel under GATT Article XX, in part because it would be open to abuse (everyone would argue it and it would be hard to disprove).
The article notes that U.S. textile producers are considering filing a Section 421 complaint. If that happens, it will be interesting to see the Obama administration's reaction.
ELSA Moot CourtCompetition on WTO Law
North American Regional Round
March 18-20, 2010
Faculty of Law,
The ELSA Moot Court Competition on WTO Law is an international moot court competition on WTO dispute settlement organized by the European Law Students Association which includes teams of students around the world. Information is available on the ELSA website at: www.elsamootcourt.org . Regional Rounds will be held in Asia, Europe, Latin America and North America in March and April, with the Final Round being held in the
. This competition is supported by the WTO and co-sponsored by the World Trade Institute and IELPO. Dominican Republic
This year, the
Universityof Ottawa, Faculty of Law is pleased to host the North American Regional Round, which is open to teams from universities in Canadaand the . It will be held from March 18-20, 2010 in United States . Information about the North American Regional Round is available at: www.commonlaw.uottawa.ca/wtomoot. Ottawa, Canada
People in other regions, feel free to email me with your details as well.
From Chad Bown, formerly at Brandeis, but now at the World Bank:
These are the highlights of his latest update of global trade remedy measures, available at the World Bank web site.
From the Korea Herald:
"I don't want to see tariffs on EU goods reduced before goods on U.S. goods are reduced," Amy Jackson, president of the American Chamber of Commerce in Korea, said at her inaugural press conference in Seoul. The former director of Washington D.C.-based C&M International, an international trade and investment consulting firm, assumed her new post on Aug. 31.
She stressed the importance of the Korea-U.S. FTA for both sides and underscored the urgency for passage of the deal by both legislatures, especially following the initialing of the FTA between Korea and the European Union on Oct. 15. This step paved the way for the official signing of the accord targeted for the first quarter of 2010.
From the European Commission:
The Commission has completed a thorough investigation into the human rights situation in Sri Lanka and in particular whether Sri Lanka is living up to the commitments it made to respect international human rights standards when it became a beneficiary of the European Union's GSP+ trade incentive scheme which provides for additional trade benefits.
The report comes to the conclusion that there are significant shortcomings in this area and that Sri Lanka is in breach of its GSP+ commitments.
We will now consult with Member States on whether to prepare a proposal with a view to
temporarily suspending these additional trade benefits.
For some analysis of whether GSP+ is consistent with WTO rules, see "The WTO Legality of the EU's GSP+ Arrangement" by Lorand Bartels. From the abstract:
Washington and Lee University School of Law and the United Nations Conference on Trade and Development (UNCTAD) cordially invite you to attend the Joint Symposium on International Investment Law and Alternative Dispute Resolution (ADR). The purpose of the Joint Symposium is to explore the prevention and management of investment treaty conflict.
The Joint Symposium on International Investment and ADR will occur in two phases, which are designed to develop and build upon each other. The initial phase of the Joint Symposium will occur through this internet site. We hope that the Symposium’s website can begin to act as a central repository for information about the intersection of international investment law and ADR. We invite you to explore this website and contact us with suggestions about ways to enhance its capacity.
The second phase of the Joint Symposium will occur at Washington and Lee University School of Law in Lexington, Virginia on March 29, 2010. We will be welcoming experts from around the globe to discuss fundamental issues about the efficient prevention and management of investment treaty conflict.
Following up on this post, the State Department's Advisory Committee on International Economic Policy (ACIEP) recently held a review of the U.S. Model BIT. The report issued by the Committee has a discussion of many issues under BITs, including the investor-state dispute mechanism. It's too long to quote the whole thing here, but here are some key portions of the different views on investor-state:
Some Subcommittee members strongly support investor-state dispute settlement. These
members noted that such provisions are contained in virtually all of the over 2,600 BITs around the world and argued that they provide an objective, fair and non-politicized forum in which investors overseas can seek redress for treaty breaches (and sometimes contract breaches) by foreign countries, including discriminatory treatment, uncompensated expropriation, and denials of fair and equitable treatment.
Other Subcommittee members strongly believe that the international dispute resolution
mechanism provided in the Model BIT poses significant risks to the public interest. They were concerned that international arbitrators may lack expertise in and understanding of local laws and societal values and, where these laws and values are at the heart of an investment dispute, the arbitration panels’ decisions risk undermining the domestic laws and values. They believed that where investment disputes raise constitutional questions, such as the allocation of powers among governmental organs or permissible limitations of property rights, the principles of democratic accountability require that domestic courts adjudicate such disputes whenever possible.
Some Subcommittee members believed that investors should first be required to exhaust
domestic remedies before taking claims to international arbitration. They asserted that the
exhaustion requirement is a fundamental principle of international law and a policy of the State Department before it will consider espousing the claims of U.S. nationals against foreign governments.
Other Subcommittee members argued that the adoption of an exhaustion requirement would run contrary to current international legal practice, undoing a half-century of progress in
international law and would in many cases effectively deny U.S. investors the realistic ability to seek justice for bad acts or omissions by foreign governments.
In addition to this discussion, there is a separate statement by some committee members opposing investor-state dispute settlement: "We recommend that the administration replace investor-state dispute settlement with a state-to-state mechanism. If the administration continues to include an investor-state dispute settlement mechanism, investors should be required to exhaust domestic remedies before filing a claim before an international tribunal. That mechanism should also provide a screen that allows the Parties to prevent frivolous claims or claims which otherwise may cause serious public harm."
For those who don't follow the issue closely, I think Judge Stephen Schwebel's individual statement (towards the bottom of the linked page) helps explain what is going on here:
For more than 150 years, the United States strongly espoused the protection of foreign
investment. That position was constructively developed by the terms of the 1994 U.S. Model
BIT. However the United States sharply modified its traditional position with the advent of
NAFTA, not by the terms of that Treaty but by interpretation of it and by the positions it took in cases brought by Canadian investors against the U.S. Government. The United States made the remarkable discovery that treaty obligations run in more than one direction; foreign investors could take advantage of U.S. obligations just as U.S. investors could invoke the BIT obligations of other States. That led the United States to shift to a “defensive posture” emphasizing restrictions upon the viability of foreign investment rather than its protection, both by the terms of the 2004 Model BIT and in the litigious positions it took in NAFTA cases (such as Glamis Gold)
In a nutshell, the U.S. wanted investor-state dispute settlement (and expansive substantive rules) as long as U.S. companies were filing complaints against developing countries, and companies from those countries were not filing disputes against the U.S. (there wasn't much foreign investment in the U.S. by such companies). This system was fairly uncontroversial here in the U.S., aside from a few people who advocated for developing country causes. However, now that Canada (and also Mexico) are filing investor-state cases against the U.S. pursuant to NAFTA, various groups in the U.S. have taken notice. They fear that complaints against the U.S. could undermine important domestic policies, and thus are trying to limit the scope of these provisions. As a result, the U.S. position on these issues has changed somewhat, in the sense that when defending its laws in investor-state complaints, it has advocated for narrowing the substantive scope of investment treaty law.
I'm not sure where this is all going. Some days I think investor-state is now so well-established that it will always be with us and will continue to spread throughout the world, maybe even effectively bringing us an MAI after every country is covered in relation to every other. Other days, though, I think we are one big judgment against a U.S. environmental law away from seeing the U.S. abandon the whole idea (other countries might react just as strongly). Is there a middle ground? Would someone propose applying investor-state only in relation to countries who are unlikely to bring complaints against the U.S.? From a public relations standpoint, in terms of how the U.S. looks in the eyes of the rest of the world, that might not come across very well. But in terms of U.S. domestic politics, it might be an acceptable compromise.
From an article entitled "The Dollar and the Deficits: How Washington Can Prevent the Next Crisis":
Any serious US effort to curb the United States' international imbalance will thus have to counter the beggar-thy-neighbor policies of other countries. The most desirable route would be multilateral surveillance and "name and shame" efforts by the IMF to identify currency misalignments and induce the perpetrators to make prompt adjustments. However, the IMF has no effective leverage over creditor countries; in fact, it has recently abandoned any serious effort to bring China's and other countries' currency imbalances under control. An alternative would be to enforce the provisions of the World Trade Organization that prohibit competitive currency action and authorize trade sanctions against violators.
For those of you familiar with the "a contrario" argument in relation to the SCM Agreement illustrative list, I thought this passage from the U.S. - Cotton Article 4.11 arbitration would be of interest:
4.161 Thirdly, we do not consider that there is any legitimate basis for us to accept the a contrario interpretation of item (j) proposed by the United States. Item (j) is illustrative of a situation in which the provision by governments of export credit guarantee programmes constitutes an export subsidy. In particular, item (j) specifies that export credit guarantee programmes constitute export subsidies when premium rates are inadequate to cover the long-term operating costs and losses of the programme. It does not necessarily follow, though, that an export credit guarantee programme may never constitute a (prohibited export) subsidy if the premium rates are adequate to cover long-term operating costs and losses. As a matter of law, it is possible that an item (j)-consistent export credit guarantee programme might still be found to confer a "benefit", on the basis of the standard set forth in Article 14(c) of the SCM Agreement.
If you have not heard of this argument before, you could either (1) consider yourself lucky and pretend I never mentioned it, or (2) go here for some more details.
I have often wondered how oil producing countries would react to lost oil exports if other countries ever begin to take serious action to shift to renewable energy. So far, very little has been done in this regard, so it has not been a big issue. But it does seem possible that we are on the verge of effective measures being taken. What will the big oil producers do in response? The NY Times reports on one possibility:
Roughly speaking, that's the issue in the EC - Measures Affecting Poultry Meat WTO dispute (DS389), for which the U.S. recently announced it will request a panel. The panel request describes the issue as follows:
The EC prohibits the import of poultry treated with any substance other than water unless that substance has been approved by the EC. The EC has not approved any other substance. Consequently, the EC prohibits the import of poultry that has been processed with chemical treatments ("pathogen reduction treatments" or "PRTs") designed to reduce the amount of microbes on the meat, effectively prohibiting the shipment of virtually all US poultry to the EC. The EC has not published or otherwise made available the process for approving a substance. The EC also maintains a measure regarding the marketing standards for poultry meat, which defines "poultrymeat" as only "poultrymeat suitable for human consumption, which has not undergone any treatment other than cold treatment."
In 2002, the United States requested the European Commission ("Commission") to approve
the use of four PRTs in the production of poultry intended for export to the EC: acidified sodium chlorite, trisodium phosphate, peroxyacids, and chlorine dioxide. However, after more than six years, including unexplained delays, the EC has not approved any of these four PRTs and instead has rejected the approval of their use.
The EC's failure to approve is despite the fact that various EC agencies have issued scientific
reports regarding a number of different aspects related to the processing of poultry with these four PRTs. Those reports did not find any scientific basis for banning the use of these PRTs. To the contrary, the conclusion of these reports is that the importation and consumption of poultry processed with these four PRTs does not pose a risk to human health.
In a nutshell, the trade issue is the following: U.S. producers use chemicals to clean their poultry, but the EC does not allow the sale of poultry cleaned this way, so U.S. producers can't sell their poultry in the EC.
For SPS disputes, I'm always interested to see how the substance of the dispute is presented, in particular whether the claim is mainly about "discrimination," "necessity," or "science," or some combination of these three. Here, the parties seem to want to take different approaches to characterizing the dispute. From the USTR press release:
By contrast, from the DG Trade press release: "we will defend our food safety legislation, which does not discriminate against imported products." So, in the battle of the press releases, it's about science for the U.S., whereas for the EC it's about discrimination (or lack thereof).
Of course, it's the panel request that really matters in this regard. Here are some of the key provisions the U.S. cited in the request and what they are mainly about:
SPS Agreement Article 2.2 - Necessity and Science
SPS Agreement Articles 5.1 and 5.2 - Science
GATT Article III:4 - Non-Discrimination
GATT Article XI:1 - Quotas and other Import Restrictions. (This one could be interesting if it explores the intersection between import restrictions and domestic regulations, given that the measure bans all such poultry, not just imports)
TBT Agreement Article 2.1 - Non-Discrimination
It's interesting that the U.S. press release does not mention discrimination, but the panel request cites some discrimination provisions. I'm not sure what to make of that. I would have thought it would be a good idea to sell the case as being about discrimination, at least in part.
It's also worth noting that in the consultations request, the U.S. left out explicit references to the non-discrimination provisions. There, the U.S. cited SPS Agreement Articles 2.2, 5, 8 and Annex C(1); GATT Articles X:1 and XI:1; Agriculture Agreement Article 4.2; and TBT Agreement Article 2 (without mentioning which sub-provisions).
The substance of the discrimination claims will also be worth following. From what I can tell, this will be a claim of de facto discrimination, as the measures apply to all products regardless of origin. It is these kinds of claims that often give the most insights into the scope of the non-discrimination standard.
Reuters reports that Canada's ban on flavored tobacco is now in effect:
There are two trade issues here. First, as mentioned before, there's the issue of how American burley tobacco is treated:
Second, there is the issue of cloves, discussed in detail in relation to the similar U.S. ban. I was hoping the press reports would explain how the Canadian ban applied to clove cigarettes (and other clove tobacco products), but I didn't see anything about this. I thought I'd try to figure it out myself, but my lack of expertise on both Canadian law and cigarettes is a bit of an impediment. Here's what I was able to dig up (anyone who has more details should feel free to post them in the comments).
The law itself is here. The key language bans tobacco products with " ". The schedule is here. The ninth additive listed is " ". From what I recall about clove cigarettes in relation to the U.S. ban, cloves are considered a spice. So does this mean cloves are covered by the Canadian ban? It seems likely. If so, will Indonesia raise concerns about this ban at the WTO? Most likely the amounts involved are significantly less than with the U.S. ban, so the concern won't be as great. Nonetheless, the principle is still important. Just like with the U.S. ban, the Canadian ban permits menthol cigarettes to be sold (at least according to the Reuters article quoted above).
One interesting part of the recent China - Publications panel report was the discussion of technological change and the timing of GATS commitments. The specific interpretive question where this arose was the following: whether China's GATS commitment on "sound recording distribution services" in Sector 2.D, covering Audiovisual Services, "extends to the supply of such services through the delivery of content to the consumer 'electronically,' and not embedded in a physical medium such as a CD or DVD." The U.S. viewed the inscription "sound recording distribution services" in Sector 2.D. as a commitment on the distribution of recorded sound, "whether as a physical or non-physical product." By contrast, China contended that its commitment under "sound recording distribution services" "covers the distribution of sound recordings only as a physical product."
In the context of looking at "supplementary means of interpretation" pursuant to Vienna Convention Article 32 in relation to this issue, the Panel considered "the circumstances of the conclusion of China's Protocol of Accession annexing China's Schedule to the GATS, in particular evidence of the existence at that time of distribution of sound recordings in non-physical form." That is, it looked at whether sound recordings were being distributed in electronic form at the time China's WTO accession was concluded. The key aspects of its reasoning were as follows:
7.1235 China argues that the electronic distribution of sound recordings as an established business and the legal framework for such business emerged only after the negotiation of its GATS Schedule and its accession to the WTO. According to China, this was part of the circumstances of the conclusion of its GATS Schedule that have to be taken into account when interpreting its commitment on "sound recording distribution services".
7.1237 The Panel considers that, in seeking to confirm the "common intention of Members" with respect to a commitment in a GATS Schedule, evidence on the technical feasibility or commercial reality of a service at the time of the service commitment may constitute circumstances relevant to the interpretation of its scope under Article 32 of the Vienna Convention. This is particularly true where, like China's entry on "sound recording distribution services", the commitment is not explicitly linked to a well-defined system of services classification, such as the CPC. At the same time, the significance of any evidence of lack of technical feasibility or absence of commercial reality of the service at the time of the service commitment would need to be carefully evaluated. We consider therefore that any evidence that sound recordings delivered in non-physical form were not, unlike today, technically possible or commercially practiced at the time China's Schedule was negotiated might, in principle, be relevant as a supplementary means of interpretation with respect to the scope of that commitment.
7.1239 ... China's Accession Protocol, including its GATS commitments, contains the terms of accession agreed between China and the WTO, and reflects the common intention of China and the WTO. This common intention was formed when the final text of the Protocol was approved by the WTO on 10 November 2001 and was accepted by China on 11 November 2001.
7.1242 ... the evidence presented by the parties suggests that the electronic distribution of music had become a technical possibility and commercial reality, albeit limited, by 1998, and in any case before the entry into force of China's GATS Schedule following its accession to the WTO on 11 December 2001.
7.1246 In sum, the record indicates that the electronic distribution of sound recordings had become a commercial reality in many markets before China's accession to the WTO. China was aware of this fact. The domestic legal framework for the electronic distribution of sound recordings in China, to the extent that this is relevant for our interpretation, was under consideration in China from as far back as 1998, although put in place only in 2001. China had clearly taken note of, and was altering its domestic law to take into account the commercial reality of electronic distribution of sound recordings before its accession to the WTO in 2001.
7.1247 We find therefore that the electronic distribution of sound recordings was technically feasible and a commercial reality as early as 1998 and, in any case, before China's accession to the WTO in December 2001. We are therefore not persuaded that the meaning of the phrase "sound recording distribution services" cannot extend to the distribution of sound recordings in non-physical form, for the reason that negotiators of China's GATS Schedule and, more broadly, WTO Members, had at the time no conception of the technical or commercial viability of this form of distribution.
In essence, the Panel's finding was that electronic distribution was well-established at the time China made its commitments on "sound recording distribution services," and thus it is covered by those commitments.
One implication of the Panel's finding seems to be that as a result of changes in technology, different Members may have different GATS obligations, even where the terms of their commitments are identical, depending on the date on which the commitments were made. In particular, countries who negotiated their GATS commitments during the Uruguay Round (which most Members did) could have different obligations than China and other recently acceded Members with regard to certain kinds of services, despite having the same language in their commitments.
The Panel did little to clarify the meaning of regulating trade in a WTO-consistent manner pursuant to the ‘[w]ithout prejudice’ clause. It concluded that this clause permits China to regulate goods imported into China or exported from China, as well as importers or exporters of those goods, for example, by: imposing WTO-consistent import licensing requirements, technical regulations in accordance with the Agreement on Technical Barriers to Trade (TBT Agreement),9 or health measures in accordance with the Agreement on the Application of Sanitary anPhytosanitary Measures (SPS Agreement);10 or limiting, ‘in a WTO-consistent manner, the class of entities or individuals who may engage in importing or exporting the good in question’ (paras.7.258, 7.269, 7.277). However, as these examples themselves refer to WTO-consistency, they are rather circular and do not identify the scope of measures that may be allowed pursuant to China’s right to regulate trade.
That's from the SSRN version of her forthcoming AJIL case note on the China - Publications decision.