scholarly journals Remarks by Federico Ortino

2018 ◽  
Vol 112 ◽  
pp. 66-67 ◽  
Author(s):  
Federico Ortino
Keyword(s):  
National Treatment ◽  
Trade Law ◽  
Appellate Body ◽  
Treatment Standard ◽  
Wto Appellate Body ◽  
The U.S

When it comes to trade law, it is true that there appear to be certain signs that we are moving back to non-discrimination and away from deeper forms of integration. However, this is possibly (and hopefully) only a limited and temporary shift. The strongest evidence of such a shift regards the apparent interpretation by the WTO Appellate Body (AB) of the key provisions in the TBT Agreement in such a way as to give prevalence to the national treatment standard in Article 2.1 over the necessity requirements in Article 2.2. For example, in US – Tuna II (Mexico) the AB found the U.S. dolphin-safe regulations under review inconsistent with Article 2.1, while also reversing the panel finding that the U.S. dolphin-safe regulations were inconsistent with Article 2.2. Such a result is surprising if one considers the general agreement among commentators that the disciplines embodied in the TBT Agreement (as well as in the SPS Agreement) went beyond the non-discrimination obligation of the GATT.

scholarly journals The Collapse of the Appellate Body as a Determining Factor of the WTO’s Future

2021 ◽  
Vol 16 (3) ◽  
pp. 238-255
Author(s):  
Hryhorii M. Kalachyhin ◽  
Keyword(s):  
Dispute Resolution ◽  
World Order ◽  
The United States ◽  
Economic Regulation ◽  
Trade Disputes ◽  
Appellate Body ◽  
The World ◽  
Shifting Balance ◽  
Wto Appellate Body ◽  
The U.S

The World Trade Organization (WTO) is one of the leading institutions involved in global economic regulation. Its purposes are to ensure multilateral cooperation on the liberalization of international trade, harmonize existing standards and requirements, and peacefully resolve trade disputes between countries. Since 11 December 2019, dispute resolution has been handicapped due to the consistent blocking of the appointment of members to the WTO Appellate Body (AB) by the United States. This has reduced the multilateral trading system’s (MTS) predictability and threatens its final decay. In this article, the fundamental and formal causes of the collapse are described, and its circumvention mechanisms and effectiveness are discussed. At the same time, an assessment is given of the possibility to overcome the collapse in 2021, considering the change of the U.S. president and other events. Special attention is paid to Russia’s position and its current and potential losses. Finally, the issue of dispute resolution through regional trade agreements is proposed for discussion. The fundamental reasons for the collapse were the shifting balance of power in the world order and the WTO’s inflexibility in adjusting the rulebook and its procedures. The main reasons for the U.S.’ dissatisfaction are objective but based on formalities; the blockage of the AB is an overreaction. Moreover, the U.S.’ position on this issue has not changed with the new president. As a result, there is abuse of the current situation as WTO members file appeals “into the void.” Existing tools to circumvent the collapse are partial and not yet popular among WTO members. Russia needs to resume the AB’s work to complete previously started high-profile disputes and to defend its interests in the future.

scholarly journals Thailand–Cigarettes (Philippines): A More Serious Role for the ‘Less Favourable Treatment’ Standard of Article III:4

2013 ◽  
Vol 12 (2) ◽  
pp. 163-193 ◽  
Author(s):  
WILLIAM J. DAVEY ◽  
KEITH E. MASKUS
Keyword(s):  
Market Analysis ◽  
Legal Issues ◽  
External Cost ◽  
National Treatment ◽  
Appellate Body Report ◽  
Appellate Body ◽  
Treatment Standard ◽  
Treatment Principle ◽  
Policy Impacts

AbstractThis paper analyzes a number of economic and legal issues raised by the Appellate Body Report in the Thai–Cigarettes case. The paper suggests two improvements that could be made to Panel procedures; supports the Appellate Body's interpretation of Article XX(d) in the present case, which seems to discard an earlier mistaken approach to Article XX; and examines, in some detail, whether the Appellate Body's application of the ‘less favourable treatment’ component of GATT Article III:4 in this and other cases is consistent with its jurisprudence under GATT Article III:2 and TBT Article 2.1. From an economics perspective, the case is straightforward on its face. However, the Appellate Body's rigorous application of the ‘less favourable treatment’ principle might not survive a fuller market analysis in terms of policy impacts on conditions of competition. Further, while we agree with the rejection of Thailand's Article XX claim, we raise the question of whether a strict national-treatment rule may be an unwarranted constraint on policy where there is a clear trade-related external cost to address.

Part II Substantive Aspects, Ch.22 National Treasures at the Intersection between Cultural Heritage and International Trade Law

2020 ◽  
Author(s):  
Voon Tania
Keyword(s):  
International Trade ◽  
Cultural Property ◽  
Control Measures ◽  
Illicit Trade ◽  
Trade Law ◽  
International Trade Law ◽  
Appellate Body ◽  
National Treasures ◽  
Wto Appellate Body ◽  
Definition Of

This chapter analyses the extent to which international trade law accommodates the export and import control measures that States commonly adopt in order to prevent illicit trade in cultural property in accordance with the 1970 UNESCO Convention. It examines the exception for ‘national treasures’ found in World Trade Organization (WTO) law and other international economic agreements. The definition of cultural property in the relevant UNESCO treaty is not necessarily identical to the meaning of national treasures in WTO law. Moreover, the WTO Appellate Body has shown reluctance to apply non-WTO law in determining WTO disputes, so a conflict between UNESCO and WTO provisions or domestic regulations might not necessarily be resolved as expected. This conclusion provides one example of the limitations of the current Appellate Body approach to international law and suggests, with respect to cultural property, that closer alliance in treaty drafting may be required to enhance coherence.

scholarly journals FTA Law in WTO Dispute Settlement: Peru–Additional Duty and the Fragmentation of Trade Law

2017 ◽  
Vol 16 (2) ◽  
pp. 303-326 ◽  
Author(s):  
GREGORY SHAFFER ◽  
L. ALAN WINTERS
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
International Treaties ◽  
Public International Law ◽  
Trade Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Political Choices ◽  
Wto Appellate Body

AbstractThere is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision inPeru–Additional Duty on Imports of Certain Agricultural Productsis important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

scholarly journals Trump's Trade War: An Indian Perspective

2020 ◽  
Vol 19 (1) ◽  
pp. 92-109
Author(s):  
Prema-chandra Athukorala
Keyword(s):  
United States ◽  
Bilateral Trade ◽  
The United States ◽  
Economic Relations ◽  
Indian Economy ◽  
Appellate Body ◽  
Generalized System Of Preferences ◽  
Export Subsidies ◽  
Wto Appellate Body ◽  
The U.S

This paper examines the implications of the Trump Administration's U.S. trade policy on U.S.–India relations and the Indian economy against the backdrop of strengthening political and strategic ties between the two countries, which have been strong since the beginning of this century. Trump's strategy of using tariffs as the bargaining chip in bilateral economic relations with India, while ignoring mutual geopolitical interests, has coincided with new protectionist tendencies in India under the Make in India strategy of the Modi government, setting the stage for a protracted bilateral trade dispute. U.S. safeguard duties on steel and aluminium have taken a toll on India's exports of these products to the United States, but these products account for a tiny share of India's total exports to the United States. The hard hit was Trump's termination of India's designation as a beneficiary developing nation under the Generalized System of Preferences (GSP). The GSP abolition is likely to have a much more significant effect on the Indian economy as exports under the program are heavily concentrated in the traditional labor-intensive industries. However,  given the handsome mandate received by the Modi government at the May 2019 election and that the next election is four years away (2024), GSP abolition is unlikely to receive much weight in determining India's position in trade negotiations compared with the new protectionist policy stance stemming from the Make in India strategy. The WTO verdict on the U.S. complaint on India's manufacturing export subsidies, if upheld by the WTO Appellate body, would strengthen the U.S. position in negotiating a trade deal with India.

scholarly journals CHINA'S STATE CAPITALISM AND WORLD TRADE LAW

2014 ◽  
Vol 63 (2) ◽  
pp. 409-448 ◽  
Author(s):  
Ming Du
Keyword(s):  
Chinese Economy ◽  
Rapid Expansion ◽  
Trading System ◽  
State Capitalism ◽  
Trade Law ◽  
Appellate Body ◽  
Trading Partners ◽  
Consistent Manner ◽  
World Trading System ◽  
Wto Appellate Body

AbstractMelding the power of the state with the power of capitalism, state-owned and state-controlled enterprises continue to control the commanding heights of the Chinese economy even though market-oriented reforms have led to a rapid expansion of the private sector in China. This article reflects on how China's practice of state capitalism challenges the world trading system and how WTO law, as interpreted by WTO Panels and the WTO Appellate Body (AB), addresses these challenges. The article concludes that the WTO Agreement on Subsides and Countervailing Measures (SCM Agreement) has been interpreted in such a manner that many key features of China's state capitalism could easily be challenged by its trading partners in a WTO-consistent manner. This finding has profound implications for China's domestic economic reforms, especially China's ongoing reforms of its state-owned enterprises and commercial banks.

Flexibilities in WTO Law to Support Tobacco Control Regulation

2013 ◽  
Vol 39 (2-3) ◽  
pp. 199-217 ◽  
Author(s):  
Tania Voon
Keyword(s):  
Tobacco Control ◽  
Health Impact ◽  
The United States ◽  
Control Measures ◽  
Careful Examination ◽  
Trade Law ◽  
International Trade Law ◽  
Appellate Body ◽  
Tobacco Regulation ◽  
Wto Appellate Body

Cases concerning the regulation of tobacco have long existed within the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade 1947 (GATT 1947), although often these cases have not centered on the detrimental health impact of tobacco products. With the 2012 circulation of the Report of the WTO Appellate Body in U.S.—Clove Cigarettes, the potential friction between international trade law and tobacco regulation in the context of public health has come to the fore. In that Report, the Appellate Body found in part against the United States’ flavored cigarette ban. Combined with the ongoing WTO challenges to mandatory plain tobacco packaging in Australia—Tobacco Plain Packaging, governments might begin to fear that the WTO agreements represent an insurmountable barrier to ambitious tobacco control measures. However, careful examination of the Clove Cigarettes case alongside the two other recent Appellate Body Reports (U.S.—Tuna II (Mexico)5 and U.S.—COOL6) on the WTO's Agreement on Technical Barriers to Trade (TBT Agreement)7 demonstrates that the TBT Agreement has ample flexibility to accommodate health objectives underlying tobacco regulation.

Community Interests in World Trade Law

2018 ◽  
Author(s):  
Christian Tietje ◽  
Andrej Lang
Keyword(s):  
World Trade ◽  
World Market ◽  
Legal Order ◽  
Institutional Transformation ◽  
Most Favored Nation ◽  
National Treatment ◽  
The Core ◽  
Trade Law ◽  
Appellate Body ◽  
Community Interest

The authors argue that WTO law protects the community interest of promoting an essentially rules-based and fair world market. The core concern of WTO law is to protect trade-conducive structures that enable and further global economic activity for the purpose of generating overall welfare. The foundational principles of national treatment and most favored nation aim at protecting the equality of competitive conditions between WTO members. Derogations from WTO law are strictly limited whenever these principles are affected. The WTO enforcement regime entitles virtually every member to bring a complaint if a nondiscrimination obligation is breached. Although bilateral elements have long been dominant and still prominently exist in the WTO legal order, communal elements are slowly overlapping and superseding bilateral elements as part of the legal and institutional transformation of the world trade system brought about by the founding of the WTO, in particular the establishment of the Appellate Body.

scholarly journals ‘Treatment No Less Favorable’ and the Future of National Treatment Obligation in GATT Article III:4 afterEC–Seal Products

2015 ◽  
Vol 15 (1) ◽  
pp. 139-163 ◽  
Author(s):  
MING DU
Keyword(s):  
Case Law ◽  
National Treatment ◽  
Appellate Body ◽  
The Future ◽  
Recent Developments ◽  
Wto Appellate Body ◽  
National Treatment Obligation ◽  
Gatt 1994

AbstractThe national treatment (NT) obligation embodied in Article III:4 of the GATT 1994 has been long marked by legal indeterminacy. Recently, the WTO Appellate Body has shed some fresh light on how the NT obligation should be interpreted inEC–Seal Products. The Appellate Body's report onEC–Seal Productsand other recent developments in WTO case law have fundamentally reshaped our collective understanding of the NT obligation. The purpose of this article is to take stock of what we have known about the NT obligation in GATT Article III:4 afterEC–Seal Products, as well as identifying some lingering uncertainties. This paper argues that the boundary of the NT obligation in GATT Article III:4 will be largely determined by how the Appellate Body deals with three big issues identified in this article in future disputes.

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