Chapter 7 is the conclusion and consolidates ideas and findings. This chapter calls for and reflects on the possibility of a more transparent and fair anti-dumping system for all WTO members achieved by promoting procedural justice. It also considers the significance of the findings of the book for international trade law discourse more generally by relating them to contemporary trade issues such as the US–China trade war, Brexit, the WTO crisis and mega free trade agreements.

The chapter analyses how trade agreements balance liberalisation of digital trade with cybersecurity concerns. The chapter identifies the strengths, weaknesses, and ambiguities facing digital trade regulation in these agreements. As a way to address the tension between international trade law and cybersecurity, it examines security exception clauses in different trade agreements. It also analyses the efforts found in recent regional trade agreements to direct state parties to have regard to international standards concerning cybersecurity issues. It concludes that harmonisation of such standards would suggest the possibility of a greater coherence in cybersecurity governance.

The world of digital commerce is relatively new. It is a by-product of an information technology revolution that started with the invention of the integrated circuit, carried forward with advances in computing and unleashed with the creation of the internet. Digital commerce is familiar in some respects and dramatically different in others from the world of trade that preceded it. It poses special problems of privacy, unwanted communication, and new kinds of competition, stemming from the flow of data across borders. It gave rise to the need to devise rules for its nurture and management. It makes the most sense for the rules to be global, as without interference from governments, e-commerce is global. It creates opportunities as never experienced before for innovation and for individual and small business involvement in international commerce. This is the story of the evolution of the process of rule-making in the age of digital commerce.

Chapter 6 provides a critical evaluation of the new rules on SOEs developed in international trade and investment agreements, with the CPTPP as the leading example. Despite its reputation as a ’twenty-first century high-standard trade agreement’, we argue that the SOE rules in the CPTPP do not add much to the existing rules in the WTO and are less rigorous than China’s WTO-plus obligations discussed in Chapter 5. This chapter then examines some major post-CPTPP trade and investment agreements with significant rules on SOEs, including the EU–Japan FTA, the EU–Vietnam FTA, the United States–Mexico–Canada Agreement (USMCA) and the CAI. As one of China’s latest international agreements, the CAI is also the first treaty where China agreed to SOE rules outside the WTO. Again, the main substantive obligation here – the one on commercial considerations – simply repeats the existing obligation in China’s WTO accession package. While all of the FTAs discussed in this chapter should be praised for setting new and higher standards of transparency, they do not resolve the longstanding problem of enforcement – the most challenging issue under the WTO’s transparency regime.

The chapter provides an overview of US agreements with Asia. It first assesses the Asia polices of Presidents Obama, Trump and Biden and their key trade pacts with Asia-Pacific countries. The chapter also discusses the China challenge in the new era of President Xi Jinping and US measures that resulted in the US-China trade war. Moreover, it examines security and economic initiatives that underpin the ASEAN-US strategic partnership, as well as landmark features of the TPP and the subsequent CPTPP. Finally, the chapter proposes a two-pronged roadmap for the Biden administration to reassert US leadership in new Asian regionalism. The roadmap calls for the White House to prioritize accession to the CPTPP and to transform the TIFA to the ASEAN-US FTA, which allows for flexible participation by ASEAN countries.

Tariff liberalization has been a centrepiece of all trade negotiations since the early inception of the General Agreement on Tariffs and Trade (GATT) in 1948 to the current framework of the World Trade Organization (WTO), and under all Regional Trade Agreements (RTAs) such as the North American Free Trade Agreement (NAFTA) and the Trans-Pacific Partnership (TPP).

It was early in the morning of October 5, 2015 when the trade ministers of twelve countries announced in Atlanta, Georgia, the successful conclusion of a seven-year, extremely complex negotiating effort known as the Trans-Pacific Partnership Agreement (TPP). The TPP was formally signed four months after its conclusion, on February 4, 2016, in Auckland, New Zealand, apparently heralding a new momentum for international trade and investment liberalization.

State-owned enterprises (“SOEs”) – that is, entities in which a government or the State has some form of direct or indirect ownership or control – occupy an increasingly important share of the global economy and international commerce. SOEs commonly operate like, and therefore can be considered in much the same way as, any other enterprise in either national or international markets. However, to the extent that they are controlled by a State, SOEs may pursue government policy objectives, rather than, or in addition to, the strictly commercial interests of the enterprise itself.2 Moreover, a State’s investment in an SOE can create incentives for the State to give preferential treatment to the SOE when compared to other economic actors. Given these dynamics, the presence of SOEs in a given market potentially generates a range of issues for governments and for actual or potential competitors of the SOE.

The Trans-Pacific Partnership (TPP) agreement contains important provisions of direct relevance for agricultural trade and will therefore have important implications for rural economies, the agri-food sector, food security and nutrition in the member countries. Similar to other sectors, for agriculture the agreement includes an ambitious and comprehensive package that goes beyond eliminating tariffs and traditional non-tariff barriers to trade in goods and services, which warrants a thorough analysis of the sectoral effects and their implications for different stakeholders, including agricultural producers.

The global economy is in the midst of the Services Revolution, which is having as dramatic an effect on our work life and daily life as the Industrial Revolution 100–150 years ago. Services make the world go around, for consumers, businesses, and governments.

Just think of your daily routine. First thing in the morning, you wake up knowing that your family was safe because of the electronic security service that was monitoring everything while you slept, from the locks on your doors to the carbon monoxide in the garage. Then you probably check your e-mail, the football or cricket results, and the headlines from the Financial Times on your smartphone service. If you drive to work, you require car insurance; if you take the subway or bus, life insurance. On the way to the office, you stop at your favorite coffee bar for your breakfast. At the office, you put the box of that birthday tie return in the express delivery pick-up box. A quick check online of your bank balance. Then you place calls to everyone who left you voicemails overnight, using one of the international telecommunications services.

One of the concerns surrounding state-owned enterprises (SOEs) in the international trade context is that they may acquire a competitive edge through “hidden subsidies or other advantages that would not be available to private firms.” The Organisation for Economic Co-operation and Development (OECD) report exemplifies the advantages that SOEs can enjoy. These are (a) outright subsidization, such as the creation of favorable tax regimes or conferring of in-kind benefits; (b) concessionary financing and guarantees, e.g. granting of credit at below-market interest rates; (c) other preferential treatment by governments, including exemptions from antitrust enforcement and building permit regulations; (d) monopolies and the advantages of incumbency; (e) captive equity, namely, the advantages that SOEs may enjoy thanks to the inability of their owners to transfer ownership rights; and (f) exemption from bankruptcy rules and information advantages. Through such means, SOEs may gain a competitive advantage merely by virtue of their state-owned status.

TPP’s importance lingers notwithstanding cries that it is ‘dead’ following the Trump Administration’s withdrawal. In practice, treaty convergence – even sheer mimicry - occurs. One might think of that as being akin to procuring a live organ transplant.The analogy is inexact.Even long dead treaties and treaty clauses can be organ donors.The TPP investment text ushered in some fascinating new clauses.They delegate to tribunals not only the task of resolving disputes, but also that of imagining, fashioning, and applying appropriate standards of social protection. In an earlier paper, I called TPP an exercise in ‘prescriptive neutrality’. This chapter returns to that argument.

Data flows are at the core of digital trade debates, as they are key to the data-driven economy, while at the same time posing a number of challenges to state sovereignty and the protection of individual rights. While adaptation at the WTO has been slow, states have turned to preferential trade venues to address the new set of issues that the era of big data has posed. The chapter, based on a comprehensive dataset, traces the developments in preferential trade agreements, in particular those of relevance to cross-border data flows. It zooms in on the recent trade deals ofthe CPTPP and the USMCA and provides a detailed analysis of the current state of global digital trade law.

The big question for policymakers is how to allow for data to flow freely across borders while maintaining strong data protection laws and regulations are necessary to a high degree of trust among individuals, firms and governments. International trade agreements seek to regulate data flows through provisions aiming to facilitate the cross-border trade of goods and services built on data, such as data processing and other computing services.

This chapter offers a detailed analysis of these CPTPP/USMCA digital trade provisions that pertain to data flows in order to identify the constraints they could impose on national data regulation.

To do so, it uses Canada as an example, because it is a party to both trade agreements and it seeks to build a high-trust data environment for consumers and businesses. The analysis leads to the conclusion that Canada’s CPTPP and USMCA commitments could ultimately negate the effectiveness of future data protection policies that the Canadian federal government might want to adopt to achieve its ‘trust in the digital age’ objective.

In Chapter 10, Risa Schwartz discusses the development of a trade and Indigenous peoples chapter, looking at the development of provisions that provide for set-asides and carve-outs in earlier FTAs to more modern provisions that recognize Indigenous rights. The chapter traces how advocacy of Indigenous peoples in international trade and investment laid the groundwork for both Canada and New Zealand to substantively address Indigenous rights. Although we have yet to see the establishment of a new chapter specifically for trade and Indigenous peoples, the USMCA, which is undergoing ratification, is the first agreement to include a General Exception that protects the rights of Indigenous peoples for all signatories. These new preferences and protections for Indigenous peoples in Canada, Mexico and the United States signal a new relationship between Indigenous peoples and international trade.