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How “safe” is the WTO “safe haven”? A need to modernise disciplines for officially supported export credits

Bob Jennekens (Faculty of Law, Maastricht University, Maastricht, The Netherlands)
Andreas Klasen (Institute for Trade and Innovation, Offenburg University, Gengenbach, Germany and Institute for Systemic Management and Public Governance, University of St Gallen (HSG), St Gallen, Switzerland)

Journal of International Trade Law and Policy

ISSN: 1477-0024

Article publication date: 8 December 2022

32

Abstract

Purpose

This paper aims to draw attention to an urgent need for reform of the regulatory framework of the broader export credit system to ensure a new and comprehensive “safe haven” for officially supported export credits. The purpose is to analyse the complex debate on disciplines of the World Trade Organization (WTO) and the Organisation for Economic Co-operation and Development (OECD), creating a point of reference for future analysis of and debates around the “carve-out clause” of the Agreement on Subsidies and Countervailing Measures (ASCM) and a “safe haven” in a broader sense.

Design/methodology/approach

This paper takes inspiration from legal, economic and political science literature on subsidies and officially supported export credits, as well as on legal documents related to the WTO and the OECD. It examines the WTO subsidy and the OECD export credits framework, focusing on main legal and economic governance aspects. Then, it gives a critical analysis how “safe” a “safe haven” in a broader sense might be, assessing frictions of and solutions for the fundamentally different set of disciplines, limitations, financial instruments not covered by OECD regulations, as well as new challenges related to climate finance.

Findings

After assessing the challenges regarding the “carve-out clause” of the WTO subsidy framework and two tracks aiming to create a new “safe haven”, requirements for comprehensive disciplines for officially supported export credits are pointed out. Furthermore, several misunderstandings and mistakes appearing in the debate are clarified.

Research limitations/implications

Desktop research rather than empirical field work.

Practical implications

This paper creates awareness for governments and exporters how to deal with a complex system of interrelated disciplines. The question, how “safe” a “safe haven” in a broader sense can be, has not been resolved yet. Some authors focus on the WTO disciplines not taking into account the need for an effective matching procedure of the Arrangement on Officially Supported Export Credits (the Arrangement). Furthermore, the introduction of several new pre-export financing programmes and the growing significance of climate finance-related instruments for export credit agencies creates both opportunities and challenges. This paper can serve as a reference point for the academic debate and further research. This paper also offers newcomers to the topic a comprehensive overview.

Originality/value

Although the “carve-out clause” and the Arrangement have been much discussed, there is limited literature review structuring both existing and new aspects of the debate, assessing (dis)advantages of arguments and interpretations. This paper both adds to the corpus of literature about the ASCM, as well as the Arrangement, and takes this corpus as the object of its analysis.

Keywords

Citation

Jennekens, B. and Klasen, A. (2022), "How “safe” is the WTO “safe haven”? A need to modernise disciplines for officially supported export credits", Journal of International Trade Law and Policy, Vol. ahead-of-print No. ahead-of-print. https://doi.org/10.1108/JITLP-05-2022-0012

Publisher

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Emerald Publishing Limited

Copyright © 2022, Emerald Publishing Limited

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