Showing papers in "Journal of International Economic Law in 2000"
TL;DR: The first four years of the World Trade Organization (WTO) Dispute Settlement were reviewed in this paper, and some preliminary judgments about the new WTO dispute procedures were given by the former Director of the Legal Affairs Division of the WTO.
Abstract: William J. Davey served as the Director of the Legal Affairs Division of the World Trade Organization between 1995 and 1999. In this note he reviews the first four years of WTO dispute settlement and gives some of his preliminary judgments about the new WTO dispute procedures. Copyright 2000 by Oxford University Press.
148 citations
TL;DR: In this article, the authors argue in favour of constitutional reforms of WTO law so as to take civil society and human rights more seriously, arguing that the noneconomic values of the WTO law are no less important for the human rights and welfare of citizens than the economic welfare effects of liberal trade, and that the WTO can and should become an advocate not only of economic freedom, but of human freedom more generally.
Abstract: Human rights and liberal trade rules (including WTO rules) are based on the same values: individual freedom and responsibility (e.g. to adjust to competition); non-discrimination; rule of law; access to courts and adjudication to disputes; promotion of social welfare through peaceful cooperation among free citizens; parliamentary approval of national and international rules. The non-economic values of WTO law are no less important for the human rights and welfare of citizens than the economic welfare effects of liberal trade. Like the EC, the WTO can and should become an advocate not only of economic freedom, but of human freedom more generally. This article argues in favour of constitutional reforms of WTO law so as to take civil society and human rights more seriously. Copyright 2000 by Oxford University Press.
128 citations
TL;DR: An overview and a tentative analysis of the new environmental treaty and its relationship with WTO law is provided.
Abstract: Can a precautionary approach to biotechnology be squared with liberal trade in agriculture? This question has been running both through the transatlantic trade conflicts over the regulation and labelling of genetically modified organisms and the negotiations of the Cartagena Protocol on Biosafety, which was finally adopted in January 2000. This article provides an overview and a tentative analysis of the new environmental treaty and its relationship with WTO law.
86 citations
TL;DR: The relationship between economic integration and environmental regulation is explored in this article, where the authors argue that economic competition would lead to a regulatory 'race toward the bottom' and that increased economic integration has proven compatible with the general strengthening of environmental standards.
Abstract: This article explores the relationship between economic integration and environmental regulation. It begins by observing that fears that economic competition would lead to a regulatory 'race toward the bottom' appear to have proven unwarranted: increased economic integration has proven compatible with the general strengthening of environmental standards. It then explains why economic interdependence has not led sub-national, national, and regional governments to compete by lowering their environmental standards. The article then explores various mechanisms by which economic integration has contributed to the strengthening of regulatory standards. It concludes by discussing the shortcomings of existing mechanisms of global environmental governance and specifying the circumstances under which regulatory coordination can promote more effective environmental governance.
85 citations
TL;DR: The role of developing countries in the development of substantive and procedural WTO legal issues and the provisions serving their special interests is briefly outlined in this paper, where the authors look at the participation of developing country Members in appellate proceedings.
Abstract: This article intends to briefly outline the role of developing countries in WTO dispute settlement as seen from the bench, that is, from the Appellate Body. More specifically, it looks at the participation of developing country Members in appellate proceedings, their contribution to the development of substantive and procedural WTO legal issues, and the provisions serving their special interests.
73 citations
TL;DR: In this article, the authors argue that race-toward-the-bottom and regulatory competition theories are overstated from a descriptive point of view and unsatisfactory from a normative perspective.
Abstract: Regulatory reformers in the United States call for decentralization in the name of 'federalism'. In Europe, a similar sentiment advances under the banner of 'subsidiarity'. One of the underlying and critical theoretical premises of these two movements is the suggestion that 'regulatory competition' among horizontally arrayed governments will generate pressures for improved governmental efficiency in the regulatory realm. Critics have suggested that rather than welfare-enhancing competitive pressures, divergent regulatory standards may instead trigger a welfare-reducing 'race toward the bottom'. In this article we argue that both race-toward-the-bottom and regulatory competition theories are overstated from a descriptive point of view and unsatisfactory from a normative perspective. Regulatory theory must reflect the diversity and complexity of the world. Optimal governance thus requires a flexible mix of competition and cooperation between government actors as well as between governmental and non-governmental actors, along both horizontal and vertical dimensions. This enriched model of 'regulatory co-opetition' recognizes that sometimes regulatory competition will prove to be advantageous but in other cases some form of collaboration will produce superior results. In a world that is pluralistic, not simplistic, a combination of regulatory competition and cooperation will almost always be optimal.
64 citations
TL;DR: The question of the relationship between international law and international trade law has taken on a greater significance with the development of the legal regime of the World Trade Organization (WTO).
Abstract: The question of the relationship between international law and international trade law has taken on a greater significance with the development of the legal regime of the WTO. Although in a formal legal sense the WTO differs little from other international organizations, its legal regime is built on assumptions that are often at variance with those underlying the traditional sovereign state model. Moreover, the WTO dispute settlement mechanism is playing an active role in the development of the substantive and procedural content of international law. The contributions of this process include clarification of the rules relating to treaty interpretation, and the development of rights of access for non-state entities. These developments have implications for some of the assumptions on which international law traditionally has been based. Copyright 2000 by Oxford University Press.
60 citations
TL;DR: The authors examines the tension between global trade liberalization and the pursuit of cultural policies by national governments and discusses some prospects for the treatment of trade and culture exception to trade is rejected in favour of the application of specific rules governing trade.
Abstract: This article examines the tension between global trade liberalization and the pursuit of cultural policies by national governments. It reviews the background to the discourse over trade and culture and a range of domestic cultural policy measures. Attention is also focused on the emergent issues governing the relationship between intellectual property, trade and culture, and recent disputes involving these at the WTO. The article then analyses the pervasiveness of globalization and its impact on the way in which cultural goods and services are traded and distributed, using the new media technologies, and its effects on cultural identity. The final section of the article discusses some prospects for the treatment of trade and culture exception to trade is rejected in favour of the application of specific rules governing trade and culture. Copyright 2000 by Oxford University Press.
59 citations
TL;DR: In this article, the authors argue that it is impossible to generalize about the benefits of competition in regulation, and that a number of factors must be considered These factors cannot be simply totted up by a researcher who then provides definitive policy advice.
Abstract: This article seeks to assess the limits of competition, and the need for regulation of competition, among regulatory jurisdictions The market for regulation involves competition among states, and may be regulated by supra-state law including international law generated by international institutions, such as the WTO or the EU The question of how competition among states should be regulated is analogous to the question asked often in domestic policy debates: how should competition among firms be regulated? This article looks to the theory of property law and, to a lesser extent, competition law, as well as to the Tiebout model, to suggest answers This article argues that it is impossible to generalize about the benefits of competition in regulation, and that a number of factors must be considered These factors cannot be simply totted up by a researcher who then provides definitive policy advice First, the regulatory competition model, like all models, has particular parameters that must be met in order for it to apply These parameters cannot be assumed, but must be evaluated in particular cases Second, the parameters are never completely met, placing us in the realm of the theory of the second best The realm of the theory of the second best calls for legislative deliberation rather than judicial or scholarly determination Third, these factors are incommensurable and involve interpersonal comparison of utility Therefore, again, the design of regulatory competition, like other decisions about regulation, is best left for political determination, informed by scholarly analyses of these factors
55 citations
TL;DR: In this article, the authors argue that neither pure regulatory competition nor complete regulatory harmonization is desirable or feasible where important international cross-border effects of regulation arise, and that a considerable degree of cooperation is almost always needed, yet non-homogeneity of regulatory policies are almost always desirable as well.
Abstract: The debate over 'competition versus harmonization' in regulatory policy often confuses the pertinent alternatives. This comment argues that neither pure regulatory competition nor complete regulatory harmonization is desirable or feasible where important international cross-border effects of regulation arise. Instead, a considerable degree of cooperation is almost always needed, yet non-homogeneity of regulatory policies is almost always desirable as well. This proposition holds virtually regardless of the subject matter of regulation.
48 citations
TL;DR: In this paper, a road-map to the many decisions triggered by the EU banana regulation at three levels: GATT/WTO procedures, the European Court of Justice, and German Courts is provided.
Abstract: This note provides a road-map to the many decisions triggered by the EU banana regulation at three levels: GATT/WTO procedures, the European Court of Justice, and German Courts. Copyright 2000 by Oxford University Press.
TL;DR: In this paper, the role of the International Labor Organization and the World Trade Organization is considered in the context of an examination of the appropriate relationship between international trade law and labor rights, identifying different ways in which tensions may arise.
Abstract: Recent debates about the role of the International Labor Organization and the World Trade Organization are considered in the context of an examination of the appropriate relationship between international trade law and labor rights. After a brief history of the issue, consideration is given to how far there is a conflict between trade liberalization and labor rights, identifying different ways in which tensions may arise. Currently, four ways of dealing with these tensions exist in an uneasy relationship with each other: a unilateral model, an NGO model, a regional model, and a multilateral model (concentrating on the ILO). If dissatisfaction with these current models grows, two alternatives are identified (rather speculatively) as possible. In one, involuntary multilateralism, the WTO adjudicatory institutions are called on to determine whether actions are in compliance with existing trade disciplines. In a second alternative, voluntary multilateralism, states agree to give the WTO a more clearly articulated role in addressing labor issues. The debate on such issues should involve all the existing international institutional actors, including the WTO. Finally, in this context, the issue of who else should participate in this debate is identified. Copyright 2000 by Oxford University Press.
TL;DR: In this paper, the European Court of Justice (ECJ) concluded that the possibility of invoking WTO provisions when reviewing the large number of measures implementing WTO Agreements might open the door towards strengthening the legal effects of WTO law in the Community.
Abstract: Until the entry into force of the WTO Agreements, the European Court of Justice (ECJ) continuously denied the direct effect of the GATT 1947 in the European Community's legal order, in particular arguing that the GATT dispute settlement provisions were characterized by a great degree of flexibility. This case law triggered much debate and criticism, as well as high expectations of the first judgment in which the Court would assess the legal effect of WTO law. In Portugal V. Council, the ECJ did not change its general rule whereby WTO law cannot be relied on to review the legality of acts of the European Community. Setting out a two-step test, the Court first denied that the WTO Dispute Settlement Understanding itself obliges the European Community to implement rulings by making them directly enforceable. Second, it denied the possibility of doing so autonomously. However, the Court upheld its case law regarding exceptions to this rule, including the possibility that WTO provisions can serve as a benchmark for reviewing Community acts taken to implement WTO Agreements. This annotation criticizes the ECJ's reasoning, in particular the underlying assumption that WTO law lacks unconditional mandatory force, and the notion of reciprocity. It argues that the judgment is misconceived. Yet, it concludes that, inter alia, the possibility of invoking WTO provisions when reviewing the large number of measures implementing WTO Agreements might open the door towards strengthening the legal effects of WTO law in the Community.
TL;DR: In this paper, a design for the use of TRIPS as a retaliatory weapon in WTO trade disputes that would overcome some of the difficulties of conventional trade retaliatory actions by developing countries is presented.
Abstract: Developing countries assert that the limited size of their markets renders conventional trade retaliatory actions by them ineffective. The complaint is that they have no effective mechanism for forcing developed countries into compliance with WTO obligations that have market access consequences for developing countries. This paper proposes a design for the use of TRIPS as a retaliatory weapon in WTO trade disputes that would overcome some of these difficulties. The proposal has many advantages: it is feasible, effective, legal, and has certain attractive attributes that are absent in conventional trade retaliation. The very presence of the threat of such retaliatory action in domestic intellectual property legislation could lead to improved compliance by developed countries.
TL;DR: The practical impact of EU regulatory efforts to facilitate cross-border financial services has yet to become clear as discussed by the authors, which may reflect either lingering Member State protectionism or simply the time needed for regulatory reform to become effective.
Abstract: The practical impact of EU regulatory efforts to facilitate cross-border financial services has yet to become clear. This may reflect either lingering Member State protectionism or simply the time needed for regulatory reform to become effective. The fact that EU harmonization has resulted in the adoption of minimum standards that cannot be considered high in relative terms supports the latter explanation. Market access has been facilitated and there is room for regulatory competition - especially when Euro and e-commerce developments are taken into account. However, in the end, the growth of cross-border financial services will depend upon the perceived effectiveness of home Member State supervision. Given that modern financial supervision requires regulatory agencies to successfully hire and retain a large number of specialists, both providers of financial services and regulators seem willing to sacrifice some regulatory diversity in favor of centralized EU supervision.
TL;DR: The WIPO Internet Domain Name Process was a unique governance exercise that employed elements of direct democracy at the international level and the management of an organizational bureaucracy (WIPO International Bureau), and it provided a suitable forum for the negotiation of incremental and experimental intellectual property rules that are needed in response to technological change.
Abstract: WTO governance has traditionally reflected the interests of producers channeled through government trade negotiators. The producer-driven governance model is not suited to the highly integrated international society of the 21st century. The WTO governance structure should be adapted to account for more diverse interests, including those of marginalized developing countries, NGOs, and individuals. One aspect of this adaptation should involve more highly integrated relations between the WTO and other multilateral institutions. The inter-institutional relationship that has evolved between the WTO and the World Intellectual Property Organization (WIPO) since the conclusion of the Uruguay Round evidences a number of characteristics that might usefully form the basis for relations between the WTO and other international organizations. The WTO-WIPO relationship effectively enhances the breadth of subject matter interests and the administrative capacity of each organization, and it provides a suitable forum for the negotiation of incremental and experimental intellectual property rules that are needed in response to technological change. A second aspect of institutional adaptation concerns increasing the participation of wider segments of international society in multilateral rule-making. The WIPO Internet Domain Name Process was a unique governance exercise that employed elements of direct democracy at the international level and the management of an organizational bureaucracy (the WIPO International Bureau). This type of process might usefully be employed in other contexts, such as by the FAO/WHO in developing health and safety guidelines in connection with genetically modified organisms (GMOs).
TL;DR: In this article, the authors analyze four possible relationships between provisions of the GATT 1994 and provisions of other Annex 1A Agreements that have so far been identified and developed by panels and the Appellate Body: conflict, express derogation, overlap and complementarity.
Abstract: Interpretative criteria and other legal tools employed in treaty interpretation are not always sufficient to resolve questions regarding the relationship between the different WTO Agreements that form a 'single package' and which entered into force on the same day. This is particularly true with respect to the various agreements relating to trade in goods. The authors analyze four possible relationships between provisions of the GATT 1994 and provisions of the other Annex 1A Agreements that have so far been identified and developed by panels and the Appellate Body: conflict, express derogation, overlap and complementarity.
TL;DR: The main arguments of Latin American and Caribbean (LAC) countries regarding the inclusion of labor issues in the WTO negotiations are described and analyzed in this paper, where the author draws on his experience as Trade Minister of Costa Rica and participant in numerous diplomatic discussions on the subject.
Abstract: The Seattle Ministerial Meeting highlighted the diverging positions of industrialized and developing countries on trade and labor. This note describes and analyzes the main arguments of Latin American and Caribbean (LAC) countries regarding the inclusion of labor issues in the WTO negotiations. The author draws on his experience as Trade Minister of Costa Rica and participant in numerous diplomatic discussions on the subject of this note.
TL;DR: The International Monetary Fund (IMF) was set up in 1944 in a context of war, with the memories of hyperinflation, depression, and fluctuating exchange rates still fresh as discussed by the authors.
Abstract: The International Monetary Fund was set up in 1944 in a context of war, with the memories of hyperinflation, depression, and fluctuating exchange rates still fresh. The institution - though never exempt from criticism - has arguably served the international community well over the years, demonstrating a tremendous ability to adjust to new economic circumstances. Despite the abandonment of the par value regime in the 1970s, the importance of the IMF has remained undiminished. The IMF played a leading role in the sovereign debt restructuring of the LDC countries in the 1980s, in the transition to a market economy of formerly communist countries in the early 1990s, and in the resolution of financial crises in Mexico and Asia in the mid- to late 1990s, though its handling of such crises has been the subject of much controversy. This paper provides a historical primer on the IMF and considers some of the challenges the institution faces as we enter the twenty-first century. In particular, it questions the wisdom of granting the IMF a formal international lender of last resort role; it suggests that surveillance be extended beyond macro-economic policies to [micro] prudential financial supervision; and surveys the evolution and 'relaxation' of conditionality over the years.
TL;DR: In this paper, the authors extend the author's prior work concerning how responsibility over environmental regulation in the United States should be allocated between the federal government and the states, and expose the weaknesses of arguments for the European Union's harmonization of process standards.
Abstract: This article extends the author's prior work concerning how responsibility over environmental regulation in the United States should be allocated between the federal government and the states. It shows why the structure of the environmental regulation in the European Union is poorly suited for the control of interstate externalities, and exposes the weaknesses of arguments for the European Union's harmonization of process standards. It then explains that in the international community the arguments differ in large part because of the weak capacity for centralized environmental standard-setting. Trade measures can therefore be a desirable way of combatting overly lax process standards in exporting countries that lead to interjurisdictional spillovers. But such trade measures should not be permitted merely because the exporting country has less stringent environmental standards than the importing country. The article ends with an analysis of how race-to-the-bottom arguments in different regulatory contexts deal with analytically distinct phenomena.
TL;DR: In this article, the authors examined the process of China's WTO accession process, and the positive links between China's internal reform and its external economic integration, and measured the gap between the commitments made by China for WTO membership and its current practice.
Abstract: One hundred years after its adoption, China's Open Door policy is bearing fruit: China has concluded expansive market access agreements with its major trading partners that have paved the way for its becoming a Member of the World Trading Community. As a necessary cost of the WTO accession, China has made remarkable commitments, particularly in relation to its current trade practice. These commitments raise the question of whether China will be able to surpass the formidable barriers of implementation in order to become an honourable Member of the World Trading Community. In an effort to provide some answers in this regard, this article examines the process of China's WTO accession process, and the positive links between China's internal reform and its external economic integration. The focus of the analysis is on measuring the gap between China's commitments for WTO membership and its current practice. The article further assesses the factors that affect the implementation of China's commitments, i.e. its law concerning international agreements, the inherent domestic constraints, and the outside monitoring. The analysis allows the tentative conclusion that the internal drive for openness evidenced in recent practice, and the outside monitoring assisted with persuasion will outweigh the negative historical context.
TL;DR: In this article, the authors use the notion of subsidiarity as a benchmark to assess the desirability and effectiveness of addressing policy challenges at the international level, and argue that in the case of investment, competition policy, and domestic (economic) regulation a multilateral rule-making response represents a first-best outcome, if the nature of the trans-border externality, market or policy failure it addresses is inherently or increasingly global in character.
Abstract: Despite the substantial achievements of the Uruguay Round, the trading system is faced with new and growing demands to extend the liberalization of international commerce and the purview of its rules in new areas hitherto considered only of domestic concern. This new trade agenda is mainly driven by the increasing integration of the world economy that has multiplied the interlinkages and reciprocal impact of domestic policies and measures. In this context it may be useful to use the notion of subsidiarity as a benchmark to assess the desirability and effectiveness of addressing policy challenges at the international level. The paper argues that in the case of investment, competition policy, and domestic (economic) regulation a multilateral rule-making response represents a first-best outcome, if the nature of the trans-border externality, market or policy failure it addresses is inherently or increasingly global in character. Copyright 2000 by Oxford University Press.
TL;DR: In this article, the authors identify several windows through which the obligations set out by the Climate Change Treaty affect the World Bank, including the Global Environmental Facility, the Operational Policies adopted by the Executive Directors of the world Bank, specific loan structures and conditions as well as the recent Prototype Carbon Fund.
Abstract: The reduction of greenhouse gas emissions is inextricably linked with economic and development policies. This raises the question, to what extent do the commitments to reduce carbon dioxide emissions under the Climate Change Convention affect the practices and policies of the World Bank? After briefly describing the interaction between climate change and economic development, as well as the respective instruments of the Climate Change Treaty and the World Bank, this paper identifies several windows through which the obligations set out by the Climate Change Treaty affect the World Bank. These include the Global Environmental Facility, the Operational Policies adopted by the Executive Directors of the World Bank, specific loan structures and conditions as well as the recent Prototype Carbon Fund.
TL;DR: In this paper, the authors highlight the problems of incorporating non-trade concerns into the amended agreement, whilst preventing it becoming yet another smokescreen for agricultural protectionism, and highlight the difficulties relating to the implementation method.
Abstract: In March 2000 talks recommenced on the renegotiation of the WTO Agreement on Agriculture after the failure of the Seattle Ministerial Meeting in December 1999. International agricultural trade regulation has always been challenging for both the GATT and the WTO and it is likely that it will remain difficult in the renegotiation discussions. The root of the problem this time is whether 'non-trade concerns' should be included into the amended agreement. In essence, Members are being asked to consider if agricultural support measures can be retained where they also have positive effects in other sectors. This note highlights the problems of incorporating 'non-trade concerns', whilst preventing it becoming yet another smokescreen for agricultural protectionism. The note highlights three difficulties. Firstly, whether there is a difference between the terms 'multifunctionality' and 'non-trade concerns'. Secondly, which issues could be 'non-trade trade concerns' for the purposes of the amended agreement, and thirdly, the difficulties relating to the implementation method.
TL;DR: In this paper, the authors describe and discuss some distinctive features of the Southern African Development Community (SADC) Treaty and Trade Protocol and assess the potential contribution of such features to successful regional integration and trade liberalization in Southern Africa.
Abstract: Member States of the Southern African Development Community (SADC) have recently ratified the Protocol establishing a free trade area. This is one of many integration or trading arrangements being established or revived in all regions and sub-regions of Africa. This, at the same time, is a unique arrangement. Some commentators regard Southern Africa as one sub-region of the continent with better prospects of successful integration. The SADC is also the regional organization that South Africa, the most important trading economy on the continent, first subscribed to upon its readmission into the international economic fraternity after the abolition of apartheid. This paper describes and discusses some distinctive features of the organization apparent from the SADC Treaty and Trade Protocol. The paper assesses, from an international trade law perspective, the potential contribution of such features to successful regional integration and trade liberalization in Southern Africa.
TL;DR: In the Carbon Steel decision, the Appellate Body finally explained its legal authority to accept amicus curiae submissions as discussed by the authors, but from a legal perspective this explanation is neither entirely satisfactory nor convincing, raising questions concerning the manner in which the Appelle Body exercises the authority vested in it by the Members.
Abstract: In the Carbon Steel decision, the Appellate Body finally explains its legal authority to accept amicus curiae submissions. From a legal perspective this explanation is neither entirely satisfactory nor convincing, raising questions concerning the manner in which the Appellate Body exercises the authority vested in it by the Members. Despite possible misgivings among the Members, because of the automaticity principle, amicus curiae submissions are here to stay. There is therefore a need to establish rules and a timetable governing the Appellate Body's treatment of such submissions.
TL;DR: In this paper, a framework for analyzing regulatory competition in labor standards is developed, and it is shown that different rule-types are affected differently by interjurisdictional competition for trade or investment.
Abstract: This paper develops a framework for analyzing regulatory competition in labor standards. Labor standards are categorized into 'rule-types', and it is shown that different rule-types are affected differently by interjurisdictional competition for trade or investment. In particular, 'purely efficient' rules are likely to be unaffected by interjurisdictional competition, while interjurisdictional competition may exert substantial pressure on rules with distributive impacts. The paper then turns to the political implications of this analysis. Conceptions of 'rights' are largely inapt to the analysis of interjurisdictional competition; but democratic theory, as well as a commitment to global equity, may call for the development of trans-national institutions which would coordinate the setting of labor standards in order to mitigate the effects of interjurisdictional competition. The paper concludes by identifying problems in the design of these trans-national labor institutions.
TL;DR: The failure of the OECD negotiations on the draft Multilateral Agreement on Investment (MAI) has been, at least in part, attributed to its envisaged dispute settlement mechanisms.
Abstract: The failure of the OECD negotiations on the draft Multilateral Agreement on Investment (MAI) has been, at least in part, attributed to its envisaged dispute settlement mechanisms. This article analyses the state-state and investor-state dispute settlement provisions of the draft MAI and argues that this criticism is based upon misunderstandings. The proposed procedures, especially the standing of private foreign investors against host states, are largely in conformity with modern developments in recent bilateral and multilateral investment protection instruments. Rather, the draft MAI failed to sufficiently clarify two substantive issues: the scope of investment protected, in particular in the pre-investment phase, as well as the complicated relationship between the MAI and dispute settlement mechanisms set out by other relevant multilateral agreements such as the WTO.
TL;DR: In this article, the authors evaluate the techniques used in the economic literature to estimate the effects of these private practices, finding them wanting on several grounds, and propose filters that policymakers can employ when evaluating accusations of impaired access to foreign markets or cartelization.
Abstract: With the decline of government-imposed trade barriers policymakers have given greater attention to the international distortions created by the practices of private firms, including cartels. We critically evaluate the techniques used in the economic literature to estimate the effects of these private practices, finding them wanting on several grounds. In contrast, many of the necessary conditions for these practices to distort resource allocation are observable, which leads us to propose filters that policymakers can employ when evaluating accusations of impaired access to foreign markets or cartelization. Before undertaking an evaluation of the effects of a foreign private practice, policymakers would check whether the necessary conditions are in place for that practice to successfully distort market outcomes. Failure to pass this initial filter would lead to the accusation being dismissed. We discuss how this filter can be operationalized, drawing extensively upon published sources and empirical studies.