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Han-Wei Liu

The emergence of China’s indigenous standards has raised concerns within the trade community. Focusing on the compatibility of such Chinese-made standards with the WTO laws, existing legal literature seem to see China’s indigenous standards as being oriented towards ‘techno-nationalism’, thereby posing a credible threat to international economic order. By revisiting the case of the WAPI, one of the most (in)famous Chinese indigenous standards in the information and communication technology (ICT) industry, this chapter contends that the threat of China’s indigenous standards policy to the global trading system may be less serious than some had thought because of the contextual factors and new rules introduced through trade and investment laws in the era of megaregionalism.

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Mark Wu

Although WTO law has foreclosed the use of traditional industrial policy instruments for technology exports, this chapter argues that a new set of instruments are emerging as vital to the competition between countries for technology-related global value chains. It highlights three such instruments: export policies, technology transfer policies, and investment reviews. Together, these tools are influencing the contours of competition between firms along value chains. This chapter then examines how mega-RTAs and other treaties seek to further discipline the use of such instruments, suggesting that further law is likely to develop to constrain government action regardless of whether mega-RTAs come to fruition.

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Yoshiko Naiki

Free trade negotiations oftentimes raise concerns over food and product safety. The issue arises as to whether a new agreement involves provisions that require parties to adopt laxer criteria in their national laws, standards, or labelling requirements related to food and product safety. For instance, in Japan, consumers were concerned that Japan’s food additive regulation or genetically modified organisms (GMOs) labelling requirements might be changed in response to the US demands during the TPP negotiations. Such consumers’ concerns were also a sensitive issue for the government of Japan before the negotiations and after the conclusion. This chapter analyzes the TPP provisions relating to food and product safety. Primarily, the TPP’s Chapters on Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary Measures (SPS) are concerned with such topics. Previous Free Trade Agreements also contain TBT/SPS Chapters. Whether these Chapters include any WTO-plus provision has been examined by researchers. At the same time, the TPP Agreement includes specific product provisions, relating to products such as GMOs, used and remanufactured goods, motor vehicles, cosmetics, organic products, or food additives, in other parts of the Agreement (the Market Access Chapter, Chapter Annexes, or bilateral side-letters). These various product-specific provisions are a unique characteristic of the TPP Agreement, reflecting trade interests and concerns of exporting parties. This chapter also addresses these specific provisions, as well as the TBT/SPS Chapters, and analyzes how the provisions affect food and product safety of the TPP parties. The chapter concludes that the product-specific provisions, as well as the TBT/SPS Chapters, do not impact national safety standards substantively. Rather, these provisions encourage and promote cooperation, the exchange of information, and transparency of national measures.

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Rolf H. Weber

The creation of a digital single market is an important objective of the European Union (EU), as can be seen in the ‘Digital Single Market Strategy for Europe’ (‘DSM Strategy’), presented by the European Commission on 6 May 2015. The main aim of the DSM Strategy consists in the strengthening of the digital ecosystem. Therefore, the Commission proposes putting more emphasis on a ‘free flow of information and of data’; such a concept should remove cross-border restrictions on international data transfers. In the meantime, the Commission submitted several legislative proposals, for example, on the sale and purchase of digital content, on copyright issues in the digital era, and on the rights and obligations of Internet platform intermediaries. In addition, a working document on the collaborative economy is available for discussion. These initiatives must be partly seen in the context of rising difficulties with global and regional agreements governing international (digital) trade. The potential success of the plurilateral Trade in Services Agreement (TiSA) of the WTO appears to be more than doubtful, not only due to political changes in national governments but also due to the increasing opposition from nongovernmental organizations and civil society. The same holds true for the EU/US project of the TTIP. The only agreement having finally a chance to be adopted seems to be the EU/Canada CETA. Apart from these more political difficulties with a proper implementation of international digital trade rules, the EU General Data Protection Regulation, having been endorsed in Spring 2016, is another important potential stumbling block for the objective of ‘free flow of information and data’. This objective can come into conflict with the data protection principles if the recipient country does not provide an equal level of data protection. The respective tensions have not been addressed in the DSM Strategy but should be dealt with in further EU Communications in 2017. Nevertheless, the lack of data protection/security standards and of compliance procedures with fundamental rights in some countries is an intensively debated topic that merits to be discussed in more depth.

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Shin-yi Peng, Han-Wei Liu and Ching-Fu Lin

This chapter will explore the interplay between law and technology, focusing on the pertinent trade issues within megaregionals. As globalization has created markets that cross borders, there is an increasing reliance on diverse types of international legal instruments to govern science and technology. The reality is that the differences in regulatory regimes become more significant as trade obstacles. Manufacturers or service suppliers often confront challenges when attempting to comply with diverse national regulatory measures. At the forefront, the questions to ask are whether the emergence of various bilateral or megaregionals help promote regulatory cooperation/coherence? Or, has such phenomenon raised more questions than it has answered in terms of regulatory divergence? What mechanisms do the multilateral, plurilateral, or bilateral economic integration arrangements design to reduce regulatory divergence? We will engage in a critical review on pertinent law-making and jurisprudence to offer a systematic examination on regulatory convergence of technology law.

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Bryan Mercurio

This chapter will analyze common pharmaceutical patent law provisions appearing in recent free trade agreements with a view to distilling the main purpose and effect of those provisions. The call for coherence between regulations in differing countries encompasses intellectual property laws and potentially impacts health policy, including access to medicines. The trend is clearly to both maximalist standards and harmonization of regulations. Existing literature is extensive on the types of ‘TRIPS-plus’ measures being incorporated into free trade agreements. This chapter will not simply decry this trend but instead makes the more nuanced argument that while harmonization can potentially yield benefits there are dangers to harmonization/regulatory coherence in the area of pharmaceutical patents. In some cases, harmonization will help efficiency and effectiveness but in other instances such standards tend to ignore context and result in inappropriate and misplaced rules. In the main, the chapter argues regulations which increase normative standards should be carefully tailored to the specific context of the country at issue while harmonization of practical standards could reduce costs and increase efficiencies in the public health system.

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Chang-Fa Lo

There are more and more package-related measures (PRMs) developed and adopted for different regulatory purposes. Different PRMs have their respective functions. For food, there are also various kinds of PRMs adopted to address its safety concerns. This chapter will explain the package-related food safety issues. It will also review the relevant TPP rules (including intellectual property, Technical Barrier to Trade (TBT), and investment rules) which are related to the PRMs in a more general manner. The chapter will then focus on the application of these TPP rules to food-related PRMs to see whether they are sufficient in addressing food safety concerns. The chapter is to propose some possible interpretative and legislative approaches to cope with some legislative insufficiencies so as to make the TPP a friendlier agreement for the safety of food.

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Branislav Hazucha

Over the last few decades, bilateral and regional free trade agreements have been frequently criticized for imposing too-high standards of intellectual property protection on developing countries by powerful developed economies. As those standards tend to be higher than the ones recognized and required on the international level, it is usually argued that such an approach can hinder developing countries in designing their national policies in a way that allows them to catch up with advanced countries in terms of economic development and technological progress. This chapter questions that criticism and shows that although bilateral and regional free trade agreements lead to international harmonization on ever-higher levels of intellectual property protection, they still provide enough room for regulatory competition between individual countries so that they can further their national policies in the field of innovation and technological progress. Individual countries can thus design their science and technology policies in the way which fits to the needs of their economies and industries.

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Shujie Feng

Among the various revolutions brought by the marriage of Internet and globalization, the revolution regarding business models and competition behaviors is the most remarkable. The use of technological methods for the attraction of consumers in virtual space has created a new landscape of competition. While countries have labored to find solutions in front of the new challenges, international treaty rules should be duly taken into account. Up until now, the Paris Convention is still the unique and basic international treaty which treats the subject of unfair competition. While most FTAs are silent in this regard, the EU Unfair Commercial Practices Directive and TPP have developed the consumer protection dimension to international anti-unfair competition law. Chinese courts and legislators are trying to work out a solution in the application of the general clause of the PRC Anti-Unfair Competition Law in Internet related cases, but they have much difficulty in establishing a reliable methodology of law interpretation or a consistent jurisprudence: some consider legitimate interests of plaintiffs are necessary; some consider it suffices to analyze directly the behavior of defendants; some define the limits of competitors’ behavior in terms of necessity of public interests, etc. In the construction of the Chinese autonomous legal concept of unfair competition, the Paris Convention, EU Unfair Commercial Practice Directive, and the TPP can yield important insight on national law. The general clause prohibiting unfair competition and the definition of three typical categories of unfair acts (acts creating confusion, acts discrediting competitors, and acts misleading consumers) in the Paris Convention, as well as the detailed provisions on fraudulent and deceptive activities in the EU Directive, provide constructive and operational reference in this respect. However, other categories of unfair competition acts need still be defined through the interpretation of honest practice and bad faith in view of the ethical and economic norms of Chinese society. Concerning the development of international law, it seems impossible to give more detail to the general clause of Article 10bis(2) of the Paris Convention except the addition of consumers’ welfare as another objective, but more convergence may be possible.

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Shin-yi Peng

Although the TPP has essentially collapsed, its Regulatory Coherence Chapter will serve as a useful reference for future trade negotiations. What lessons can be learned from the TPP? First, under the TPP text, each party has the right to decide to what extent its domestic regulation should be subject to the TPP regulatory coherence obligations. The applicable coverage of the Regulatory Coherence Chapter, as a result, is entirely uncertain. Second, it is not entirely clear whether the application of the Chapter is only limited to TPP parties’ secondary legislation, or the Chapter is also applicable to parties’ primary legislation. The examination of the relevant provisions of the Chapter in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties confirms that the Chapter was politically motivated by the desire to have ambiguously drafted provisions and to leave plenty of room for individual interpretation as to ‘who’ is required to apply regulatory impact analysis (RIAs) to their decision-making. Third, as demonstrated by the anti-spam laws of the TPP parties, the Regulatory Coherence Chapter falls short of a clearly defined threshold for how a RIA operates. Fourth, the RIA process under the TPP is also weakened by the lack of a clear and enforceable mechanism to ensure that the trade impact will be properly taken into account by all regulatory agencies. Finally, without sufficient quality assurance mechanisms, the cost-benefit analysis could not be properly applied. There are critical methodological questions that must be answered. This chapter concludes that the laws governing unsolicited commercial electronic messages provide an interesting case study on the challenges for the Regulatory Coherence Chapters in the megaregionals.