Necessity Testing

2021 ◽  
pp. 135-174
Author(s):  
Caroline E. Foster
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Policy Response ◽  
Economic Interests ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Regulatory Standard ◽  
General Exceptions

Part III comprises two chapters, Chapter Five and Chapter Six. These chapters together investigate the decisions of WTO panels and the Appellate Body in environmental and health cases. The chapters examine the major contribution made through WTO dispute settlement to the emerging global regulatory standard of regulatory coherence. Specifically, Chapter Five analyses the elaboration of the ‘necessity’ formula in the GATT and the GATS general exceptions’ subparagraphs, as well as under the TBT and SPS Agreements. The WTO adjudicatory process appears to have been protecting the traditional procedural justification of international law’s relative authority claim by enabling respect for domestic decision-making through democratic processes. Members’ entitlement to choose their level of protection against a risk is still at present fully recognised and there is vital scope for recognition of the importance to WTO Members of long-term non-economic interests requiring a multifaceted policy response.

Rational Relationships

2021 ◽  
pp. 175-212
Author(s):  
Caroline E. Foster
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Wto Dispute Settlement ◽  
Regulatory Standard ◽  
Value Judgements ◽  
Policy Objectives ◽  
General Exceptions ◽  
Trade Measures ◽  
Domestic Level

Chapter Six continues Chapter Five’s examination of the regulatory coherence standard in WTO dispute settlement, this time focusing on ‘rational relationship’ testing under the non-discrimination provisions in the chapeau to the GATT and GATS general exceptions, as well as under the TBT and SPS Agreements. WTO non-discrimination jurisprudence looks for a rational relationship between a regulatory measure’s otherwise discriminatory aspects and the measure’s policy objectives. Rational relationship tests, like necessity tests, embody the emerging global regulatory standard of regulatory coherence, calling for a certain relationship between trade measures and their objectives. Like necessity testing, rational relationship testing lends itself to application in a way that accommodates decision-making at the domestic level on matters requiring important value judgements.

scholarly journals Risk Assessment, Science and Deliberation: Managing Regulatory Diversity under the SPS Agreement?

2012 ◽  
Vol 3 (4) ◽  
pp. 535-544
Author(s):  
Emily Reid
Keyword(s):  
Risk Assessment ◽  
Decision Making ◽  
Dispute Settlement ◽  
Review Process ◽  
Mutual Recognition ◽  
Fundamental Question ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Regulatory Decisions ◽  
Different Levels

The adoption by WTO Members of measures relating to the protection of health and life of animals, plants and humans is regulated by the WTO Sanitary and Phytosanitary (SPS)Agreement. A fundamental question in the application of this agreement concerns the distinction to be drawn between legitimate regulation and unlawful restriction of trade. This distinction can be difficult to discern, particularly since different communities have different levels of tolerance for risk, which leads to varying national regulatory decisions. This paper critically examines the approach taken to this question in rulings of the WTO dispute settlement panels and Appellate Body, highlighting and analysing three emergent issues:the role attributed to science, the two stage review process adopted and the application of the principle of mutual recognition. The importance of deliberative decision-making inthis context is emphasised, as is the need for recognition and acceptance of the regulatory diversity that this will bring.

The WTO Bananas Decision: Cutting Through the Thicket

1998 ◽  
Vol 11 (2) ◽  
pp. 201-227 ◽  
Author(s):  
Bruce R. Hirsh
Keyword(s):  
Dispute Settlement ◽  
Trade In Services ◽  
Allocation System ◽  
Goods And Services ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Quota Allocation ◽  
The Eu

The Bananas decision demonstrated that WTO dispute settlement panels and the Appellate Body are capable of effectively and clearly analyzing whether extremely complex measures are consistent with WTO rules. The trade-liberalizing decision established the General Agreement on Trade in Services (GATS) as a meaningful constraint on discriminatory measures with an impact on both goods and services and clarified the nature of the GATS Most-Favoured Nation (MFN) obligation. The decision also severely constrained the ability of the EU to justify non-tariff discriminatory measures such as the quota allocation system at issue in Bananas based on the Lomé waiver.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

1999 ◽  
Vol 48 (1) ◽  
pp. 199-206 ◽  
Author(s):  
Asif H. Qureshi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Market Access ◽  
The United States ◽  
Consultation Process ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Wto Appellate Body ◽  
Dispute Settlement System

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

Conclusions to Part II

2019 ◽  
pp. 161-166
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
The Other ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Rule Compliance ◽  
The World ◽  
Dispute Settlement System ◽  
The One

When asked what, if anything, distinguishes US-Clove Cigarettes from other disputes filed with the World Trade Organization (WTO) Dispute Settlement System (DSS), an Appellate Body (AB) Secretariat staff member replied: ‘A number of things and nothing at the same time’.1 This answer aptly captures the story of trade-and disputes and the DSS’s goal-attainment patterns in such cases, as revealed in this second part of the book. On the one hand, as in all WTO disputes, the DSS appears to be engaged in this class of cases in the routine legal exercise of law application and interpretation while pursuing its multiple goals, including rule-compliance and dispute resolution. On the other hand, as a WTO practitioner remarked when discussing the ‘interpretative exercise’ carried out by the DSS in trade-and disputes:...

On the Legality of the United States Action of Terminating India’s GSP Status

2020 ◽  
Vol 55 (1) ◽  
pp. 119-129
Author(s):  
R. Rajesh Babu
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Developed Countries ◽  
The United States ◽  
Appellate Body ◽  
Generalized System Of Preferences ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Developmental Opportunities ◽  
Enabling Clause

Since the US Presidential Proclamation terminating India status as a Generalized System of Preferences (GSP) beneficiary with effect from 5 June 2019, questions are raised on the WTO legitimacy of such an action. The US measure, which appears to have a punitive element—a move precipitated by lack of reciprocity from India by not providing ‘equitable and reasonable access’ for US products in Indian markets—challenges the fundamentally premise of the GSP schemes. Since the GSP schemes are established to provide economic and developmental opportunities for developing countries, and once established must be administered as per the 1979 General Agreement on Tariffs and Trade Enabling Clause, meaning it must be on a ‘generalised’, ‘non-reciprocal’ and ‘non-discriminatory’ basis, can India raise a legitimate challenge against the US action at the WTO Dispute Settlement Body? Or can the GSP schemes, being voluntary and unilaterally administered, be structured by developed countries as trade policy tools with stringent trade and non-trade conditionalities? The decision of the Appellate Body in European Communities—Tariff Preferences, the contested nature of the Enabling Clause and the heterogeneous nature of developing countries at the WTO makes the interpretation knotty. In this context, this article provides a brief comment on the legal basis of the Enabling Clause in the WTO framework and the legitimacy of the US action of termination of India from the beneficiary status. Keeping aside the legal question, the author is also of the view that time is ripe for India to consider ‘graduating’ itself from such preferential arrangements and engage in binding obligations that are reciprocal and sustainable. JEL Codes: K33, O24

scholarly journals Introduction

2019 ◽  
Vol 18 (2) ◽  
pp. 169-172
Author(s):  
CHAD P. BOWN ◽  
PETROS C. MAVROIDIS
Keyword(s):  
Dispute Settlement ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System

The WTO dispute settlement system has come under severe criticism in recent times, which does not seem, for now at least, to affect its relevance. In terms of output, 2017 was yet another bumper year. We review eight cases that constitute the ‘last word’ of the dispute settlement system: we review exhaustively all Appellate Body reports, as well as all un-appealed panel reports.

Guarding the Great Wall?—jurisprudential review of treaty interpretative tools in Chinese BIT-based arbitration cases

2020 ◽  
Author(s):  
Shen Wei
Keyword(s):  
Dispute Settlement ◽  
Active Role ◽  
The Other ◽  
Policy Response ◽  
Appellate Body ◽  
Other Hand ◽  
The Us ◽  
Great Wall ◽  
The Eu

Abstract Inconsistency has been said to be one of the most severe shortcomings the existing investor–State dispute settlement (the ISDS) system possesses. Inconsistency, if not cured, is likely to affect the legitimacy of the ISDS. Partly in response to the claims of inconsistency and illegitimacy of the ISDS, the EU has proposed to have a permanent investment court to replace the ISDS while the US proposed to have an appellate body for the current ISDS along with a large camp of undecided states having no firm position on the ISDS reform. China, on the other hand, has not issued an official response to the concept of a permanent investment court, partially because of its less active role in the use of the existing ISDS. More recent years have witnessed China’s increasing involvement in ISDS cases. The purpose of this article is to review these China BIT-related ISDS cases, in particular, the awards on jurisdiction, and the tribunals’ varying techniques in interpreting the ISDS clauses in China’s BITs with a focus on the jurisprudential analyses of these cases and the tribunals’ treaty interpretive techniques. Not surprisingly, the interpretative tendency has been quite uniform. In brief, the tribunals have tended to be more expansive when they were called upon to determine the jurisdictional issues. Although this article is largely jurisprudential, a sense of the tribunals’ arbitral techniques may help shape some foundational underpinnings for China’s policy response to the proposals to reform the ISDS system made by the EU, the US, and others.

European Legal Culture and WTO Dispute Settlement: Thirty Years of Socio-Legal Transplants from Brussels to Geneva

2020 ◽  
Vol 19 (1) ◽  
pp. 107-133
Author(s):  
Tommaso Soave
Keyword(s):  
Significant Contribution ◽  
Dispute Settlement ◽  
Legal Culture ◽  
The Self ◽  
Political Environment ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Social ◽  
Trade Measures

Abstract This article argues that the legal culture of EC/EU institutions has made a significant contribution to the ethos, the style, and the tone of WTO dispute settlement bodies. Areas of alignment between the two regimes include the self-perceived role of adjudicators vis-à-vis their political environment and the jurisprudence on the ‘necessity’ of non-trade measures. Based on these premises, the article traces some of the social and professional pathways through which European sensibilities and perspectives have found their way from Brussels (and Luxembourg) to Geneva. In particular, it describes the convergent trajectories of the EC/EU and the GATT/WTO professional communities. The goal of the analysis is to provide a fresh outlook on the ongoing diplomatic stalemate surrounding the future of the Appellate Body and WTO dispute settlement at large.

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