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Oxford Law Citator
Contents
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Preliminary Material
Preface to the Third Edition
Contents
List of Abbreviated Dispute Names
Table of WTO and GATT Decisions
WTO Decisions
GATT Decisions
Table of Court and Administrative Decisions
European Commission
European Court of Justice and Court of First Instance
International Court of Justice
Japan
NAFTA Dispute Panel
Permanent Court of International Justice
US
Table of WTO and GATT Documents
WTO Documents
GATT Documents
Table of Other Treaties
WTO Agreements
Other Conventions and Treaties
List of Abbreviations
Main Text
1 The World Trade Organization
Preliminary Material
1 Bretton Woods and the Failure of the International Trade Organization
2 The GATT Becomes an International Organization
3 A Summary of GATT Obligations
4 The Historical Context of the GATT
5 The Need for an International Organization Concerned with Trade
6 The GATT Tariff Negotiating Rounds
7 The Creation of the WTO
8 The WTO: Functions and Structure
8.1 Membership, accession, and withdrawal
8.2 Decision making
8.2.1 General decision making
8.2.2 Interpretations
8.2.3 Waivers
8.2.4 Amendments
8.3 The WTO as an international organization
9 Ongoing Work and Activities
10 Principal Accomplishments of the GATT/WTO
11 Major Challenges Confronting the WTO
11.1 General decision making
11.2 Relations with civil society
11.3 Achieving greater consistency in global economic policy
11.4 Regional and preferential trade agreements
11.5 Developing countries and trade
12 The Doha Development Agenda
13 The ‘Bali Package’
14 The Future of the WTO
2 WTO Law and Domestic Law
Preliminary Material
1 Introduction
2 The European Union
2.1 Treaty powers of the Union
2.2 The relationship between WTO law and the legal regime of the EU
3 Japan
4 The United States
4.1 Overview of US law
4.2 The relationship between WTO law and US law
5 Conclusion
3 Sources of Law and Principles of Interpretation
Preliminary Material
1 Introduction
2 Sources of Law Applicable in WTO Adjudication
2.1 The covered agreements
2.2 Secondary law
2.2.1 Interpretations, waivers, amendments
2.2.2 Decisions and recommendations by WTO organs
2.2.3 International agreements signed by the WTO
2.3 The treatment of customary international law in the WTO
2.4 General principles of law in the WTO legal order
2.4.1 Estoppel
2.4.2 Res judicata
2.4.3 Error
2.4.4 Non adimplenti contractus
2.4.5 Good faith (bona fides)
2.4.6 In dubio mitius
3 Interpretative Elements (of the WTO Sources of Law)
3.1 The Vienna Convention on the Law of Treaties in the hands of the WTO courts
3.2 The VCLT as a means of identifying and classifying the interpretative elements
3.2.1 The text
3.2.2 The context
3.2.3 Object and purpose
3.2.4 Subsequent agreement
3.2.5 Subsequent practice
3.2.6 Other relevant rules of public international law
3.2.7 Special meaning
3.2.8 Supplementary means
3.3 Other interpretative elements
4 The ‘Self-Contained Regime’ Problem
5 Concluding Remarks
4 Dispute Settlement
Preliminary Material
1 Introduction
2 Dispute Settlement in the GATT
3 WTO Dispute Settlement
3.1 General considerations
3.2 Institutions
3.3 Scope of application
3.4 The legal effect of Panel and Appellate Body reports
3.5 Dispute resolution procedures
3.5.1 Objectives
3.5.2 Initiation: request for consultations
3.5.3 Standing to bring claims
3.5.4 Good offices, conciliation, and mediation
3.5.5 Arbitration
3.6 The Panel process
3.7 The appellate process
3.8 Implementation
3.8.1 Reasonable period for implementation
3.8.2 Compliance and the ‘sequencing’ problem
3.9 Compensation for failure to comply and retaliation
3.10 Special dispute resolution procedures
3.10.1 Non-violation complaints
3.10.2 Situation complaints
3.11 Adverse inference
3.12 Amicus curiae
3.13 Burden of proof
3.14 Judicial economy
3.15 Standard of review
3.16 A critique of the DSU
5 Enforcement of WTO Obligations: Remedies and Compliance
Preliminary Material
1 Overview: Implementing the DSB’s ‘Recommendations and Rulings’
2 Remedies in Cases of Successful Non-violation and Situation Complaints
3 The Starting Point: Rulings and Recommendations Based on Recommendations and Suggestions Pursuant to DSU Article 19
3.1 Recommendations by Panels or the Appellate Body pursuant to DSU Article 19
3.2 Suggestions
3.2.1 Treatment of requests for suggestions in WTO case law
3.2.2 Situations that warrant the issuing of suggestions
3.2.3 Unrequested suggestions
4 Lex specialis Remedies
5 Prompt Compliance and the Reasonable Period of Time (RPT)
5.1 Bilateral determination of the RPT
5.2 Multilateral determination of the RPT
5.2.1 The regulatory framework
5.2.2 Determining the RPT through arbitration pursuant to DSB Article 21.3(c)
5.2.2.1 The function of the fifteen-month guideline
5.2.2.2 The ‘particular circumstances’
5.2.2.3 Factors considered in WTO arbitral awards
5.2.2.4 Factors not considered in WTO arbitral awards
5.2.2.5 The burden of proof
5.3 Surveillance of implementation by the DSB after the establishment of RPT
6 Compliance Review Pursuant to DSU Article 21.5
6.1 The mechanics
6.2 The rationale for compliance Panels: the exclusion of unilateralism
6.3 The mandate of compliance Panels
6.4 Appeals of compliance Panel decisions
6.5 The sequencing issue
7 Enforcement Measures Pursuant to DSU Article 22
7.1 The remedies available under DSU Article 22.1
7.2 The different functions of compensation and suspension of concessions
7.3 Mutually acceptable compensation pursuant to DSU Article 22.2
7.4 Countermeasures: suspension of concessions or other obligations under Article 22
7.4.1 Countermeasures: cross-retaliation and its limits
7.4.2 Equivalence: the level of permissible countermeasures, DSU Article 22.4
7.5 Prospective or retroactive remedies
7.6 Compulsory submission to arbitration (Article 22.6)
7.6.1 The mandate of the Arbitrators
7.6.2 The burden of proof
7.6.3 The Arbitrators’ decision: first and last resort
7.6.4 Calculating the level of suspension of concessions
7.6.5 Indirect benefits: what counts as a nullified or impaired benefit?
7.6.6 Litigation costs are not recoverable
7.6.7 The special cases of prohibited and actionable subsidies
8 Compliance Following the Adoption of Countermeasures
9 The Sequencing Issue: DSU Article 21.5 vs. 22.2
10 Conclusions
6 Most Favoured Nation Treatment
Preliminary Material
1 The Most Favoured Nation Obligation as a Manifestation of the Principle of Non-discrimination
2 GATT Article I
2.1 Policy rationale
2.2 Measures covered
2.3 ‘Any advantage, favour, privilege or immunity’
2.4 ‘Like product’
2.4.1 The basic definition of ‘like product’
2.4.2 ‘Irrespective of origin’
2.5 ‘Accorded immediately and unconditionally’
2.6 De jure and de facto discrimination
2.7 No demonstration of effects or intent required
2.8 No rebalancing permitted
2.9 The assumption of ‘likeness’ in case of origin-based discrimination
3 MFN in the GATS: Preliminary Remarks
4 Exceptions to MFN
4.1 Introduction
4.1.1 Quotas
4.1.2 Waivers
4.2 Preferential trade areas (GATT Article XXIV and GATS Article V)
4.3 Special and differential treatment for developing countries (the Enabling Clause)
5 Conclusions
7 National Treatment
Preliminary Material
1 National Treatment—A Recurring Theme in All WTO Agreements
1.1 National treatment in the TBT and SPS Agreements
1.2 National treatment in the GATS
1.3 National treatment in the TRIPs Agreement
2 National Treatment Pursuant to GATT Article III
2.1 A broad protection against discriminatory and protectionist internal measures
2.2 Protection against state measures vs. preservation of members’ regulatory autonomy
2.2.1 The aim and effects test
2.2.2 ‘Likeness’ and the product–process distinction
2.2.3 GATT Article III: more than the sum of its constituent parts…
3 Article III:2—Internal Taxation
3.1 Scope
3.2 Article III:2, sentence 1: national treatment of like products with regard to taxes
3.2.1 First element: the imported and domestic products are ‘like products’
3.2.2 Second element: the imported products are taxed ‘in excess of’ the domestic products
3.3 Article III:2, sentence 2: national treatment of directly competitive and substitutable products with regard to taxes
3.3.1 The imported and domestic products are ‘directly competitive or substitutable’
3.3.2 The domestic and imported products are ‘not similarly taxed’
3.3.3 The dissimilar taxation is applied ‘so as to afford protection’ to domestic production
4 Article III:4—Internal Laws and Regulations
4.1 The (allegedly) preferentially treated domestic product needs to be ‘like’
4.2 The measure is a law, regulation, or requirement affecting the internal sale, offering for sale, purchase, transportation, distribution, or use of the products
4.3 The imported products ‘are afforded less favourable treatment’
5 Application of Article III to State-trading Monopolies
6 Application of Article III National Treatment Obligations to Sub-National Units of WTO Members
7 The Relationship between GATT Article III and Article XI
8 Exceptions to the National Treatment Principle
8.1 Government procurement (GATT Article III:8(a))
8.2 Subsidies to domestic producers (GATT Article III:8(b))
8.3 Internal maximum price control measures (GATT Article III:9)
8.4 Cinematographic films (GATT Articles III:10 and IV)
8 Tariffs, Quotas, and Other Barriers to Market Access for Goods
Preliminary Material
1 Introduction
2 Tariffs and Customs Rules
2.1 Introduction
2.2 The definition of ‘tariff’
2.3 Types of tariffs
2.4 The purpose and effects of (import) tariffs
2.5 Schedules of concessions
2.6 Tariffs bindings proper
2.7 Renegotiation of schedules and other tariff modifications
2.8 Classification of goods
2.9 Other duties and charges
3 Non-Tariff Barriers I: Customs-Related Measures
3.1 Agreement on Customs Valuation
3.2 Customs fees and formalities connected with importation and exportation
3.3 Agreement on Import Licensing Procedures
3.4 Agreement on Preshipment Inspection
3.5 Agreement on Rules of Origin
3.6 Customs laws and procedures
4 Non-Tariff Barriers II: Quantitative Restrictions
4.1 Introduction
4.2 Prohibition on quantitative restrictions: a primer
4.3 Exceptions to the prohibition on quotas and other measures
5 Non-Tariff Barriers III: Other Measures Restricting Market Access
5.1 State-trading enterprises
5.2 Technical barriers to trade
5.3 Sanitary and phytosanitary measures
5.4 Sectoral market access agreements
5.4.1 Textiles and clothing
5.4.2 Agriculture
9 Agricultural Trade
Preliminary Material
1 Introduction
2 Historical Context
3 Non-trade Concerns in Agricultural Trade (‘Multifunctionality’)
4 The Agreement on Agriculture: An Overview
4.1 Product coverage
4.2 Substantive provisions
4.3 Relationship to other WTO agreements
5 The Agreement on Agriculture’s Market Access Provisions
5.1 Overview
5.2 Tariffication and reduction commitments
5.3 Current and minimum market access
5.4 Limitations and exemptions
5.4.1 Special treatment and GATT exceptions, Article 4.2 and Annex 5
5.4.2 AoA Article 5 special safeguard provisions
6 The Agreement on Agriculture’s Domestic Support Provisions
6.1 ‘Amber box’ measures
6.1.1 Aggregated Measurement of Support
6.1.2 Exemptions from the calculation
6.2 ‘Blue box’ measures
6.3 ‘Green box’ measures
7 The Agreement on Agriculture’s Export Competition Provisions
7.1 Definition of export subsidies
7.2 The export subsidies prototypes pursuant to Article 9.1
7.2.1 ‘Direct subsidies’
7.2.2 Sale or disposal for exports by governments or their agencies
7.2.3 Payments on export financed by virtue of governmental action
7.2.4 Subsidies to reduce marketing costs
7.2.5 Transport charges for export shipments more favourable than for domestic shipments
7.2.6 Subsidies on agricultural product contingent on their incorporation in exported products
7.3 Prohibition of circumvention
7.4 Reduction commitments
7.5 Export restrictions
8 Review and Remedies
8.1 Committee on Agriculture
8.2 The ‘Peace Clause’: history
8.3 Remedies after the expiry of the ‘Peace Clause’
9 Special Treatment of Developing Countries
10 The Changing Interests in Agriculture and the Doha Round Negotiations
10.1 The 2008 modalities
10.1.1 Market access
10.1.2 Special safeguards
10.1.3 Export competition
10.1.4 Domestic support
10.2 Efforts to save the Doha Round: the Bali package and beyond
10 Subsidies and Countervailing Duties
Preliminary Material
1 The Power of the Purse
2 The Scope of the SCM Agreement: Specific Subsidies
2.1 Financial contribution
2.1.1 Direct transfer of funds
2.1.2 Forgoing or not collecting government revenue that is otherwise due
2.1.3 Providing goods or services other than general infrastructure, or purchasing goods
2.1.4 Use of a private entity as intermediary
2.1.5 Attributing financial contribution to a government
2.1.6 Income or price support in the sense of GATT 1994 Article XVI
2.2 A benefit conferred
2.2.1 The ‘private investor test’ as a starting point
2.2.2 Identity of the recipient and the issue of ‘pass through’ of subsidies
2.2.3 Duration of benefits—the life of a subsidy
2.3 Specificity
3 Prohibited Subsidies (‘Red Light Subsidies’)
3.1 Export subsidies
3.2 Import substitution subsidies
4 Actionable Subsidies (‘Yellow Light Subsidies’)
4.1 Actionable due to ‘injury to the domestic industry of another Member’
4.1.1 Like products
4.1.2 Domestic industry
4.1.3 Injury
4.1.3.1 Material injury to a domestic industry
4.1.3.2 Threat of material injury to a domestic industry
4.1.3.3 Material obstruction of the establishment of such an industry
4.1.3.4 Causation
4.2 Actionable due to ‘nullification or impairment of benefits accruing directly or indirectly to other Members under GATT 1994’
4.3 Actionable due to ‘serious prejudice to the interests of another Member’
4.3.1 Definition of market
4.3.2 Displacement of and impediment to the imports of a like product
4.3.3 Serious prejudice due to ‘significant price undercutting by the subsidized product as compared with the price of a like product of another Member in the same market or significant price suppression, price depression or lost sales in the same market’
4.3.4 Serious prejudice due to ‘an increase in the world market share of the subsidizing Member in a particular subsidized primary product or commodity’
4.4 Methodology and causality issues
4.4.1 Causation issues
4.4.2 Methodology issues
5 Counteracting Subsidies: The Multilateral Track
5.1 Prohibited subsidies
5.2 Actionable subsidies
6 Counteracting Subsidies: Countervailing Duties as a Unilateral Option
6.1 The substantive conditions for lawful imposition, in particular injury
6.2 The procedural conditions for lawful imposition
6.2.1 Application by or on behalf of the domestic industry
6.2.2 Role of the Investigating Authority
6.3 The numerus clausus of measures to be taken after the conclusion of CVD investigations
6.4 Ending of the procedure by undertakings
6.5 Provisional imposition of CVDs
6.6 The imposition of definitive countervailing duties
6.6.1 Quantitative determination of CVDs
6.6.2 Other legal questions related to imposition of CVDs
6.6.3 Review of countervailing duties
6.6.3.1 The sunset review
6.6.3.2 The administrative review
6.7 Judicial review
7 Special and Differential Treatment
8 Institutional Set-up
11 Antidumping
Preliminary Material
1 What is Dumping?
1.1 Dumping as sales below cost
1.2 Dumping as international price discrimination
1.3 Duration
1.4 Cost analysis
1.5 Welfare effects
1.6 Measures to counteract dumping
2 The Regulation of Antidumping Duties
2.1 The legal framework of antidumping in the GATT/WTO regime
2.1.1 GATT Article VI
2.1.2 The Antidumping Agreement
2.1.3 Institutions and notifications
2.1.4 Developing countries
2.2 Investigation
2.2.1 Initiating an investigation
2.2.2 Evidential issues
2.2.3 The duties of the investigating authority
2.3 Determination of dumping
2.3.1 Like product
2.3.2 Comparison of third-country prices
2.3.3 Constructed value
2.3.4 Arm’s length transactions and transactions between affiliated parties
2.3.5 Sales below cost
2.3.6 Fair price comparisons
2.3.7 Averaging
2.3.8 Zeroing
2.3.9 Non-market economy
2.4 Determination of injury
2.4.1 Material injury or threat of material injury
2.4.2 Factors to be considered when determining injury
2.4.3 Factors to be considered when determining threat
2.4.4 Cumulation of injuries
2.4.5 Causation
2.5 Domestic industry
2.6 The imposition of antidumping measures
2.6.1 Provisional measures
2.6.2 Definitive measures
2.6.3 Retroactivity
2.6.4 Duration and review
2.7 Price undertakings (suspension of antidumping duty investigations)
2.8 Anti-circumvention
2.9 Dispute settlement
3 Criminal Penalties and Private Remedies
3.1 The US 1916 Antidumping Act
3.2 Future implications of the Panel and the Appellate Body report on the 1916 Act case
3.3 The US Offset Act
4 Conclusions
12 Safeguards
Preliminary Material
1 Introduction
2 The Legal and Policy Framework for Safeguards in the GATT/WTO Regime
3 GATT Article XIX and the Agreement on Safeguards
3.1 GATT Article XIX
3.2 The Safeguards Agreement
3.3 The relationship between GATT Article XIX and the Safeguards Agreement
3.4 Investigation
3.5 Provisional application
3.6 Determination of increased imports
3.7 Unforeseen developments
3.8 Determination of injury
3.8.1 Serious injury or threat of serious injury
3.8.1.1 Serious injury
3.8.1.2 Threat of serious injury
3.8.1.3 Factors to be considered when determining injury or threat thereof
3.8.1.4 Domestic industry
3.8.2 Causation
3.9 Limits on the application of safeguard measures
3.9.1 Parallelism
3.9.2 Non-attribution
3.9.3 Extent of safeguards
3.9.4 Selectivity
3.9.5 Developing countries
3.9.6 GATT Article XIII
3.9.7 Duration and review
3.10 Notification and consultation
3.11 Compensation
3.12 The standard of review for safeguard disputes
4 Safeguard Measures for Balance of Payment Reasons
4.1 The GATT
4.2 The WTO
5 Safeguard Measures in Textile and Clothing Trade
6 Prohibition on Voluntary Export Restraints
6.1 Prohibition in the Safeguards Agreement
6.2 Tension between voluntary export restraints and competition policy
13 Technical Regulations, Standards, and Health Measures
Preliminary Material
1 The Role of the TBT and SPS Agreements
2 The Legal Relationship between the GATT, TBT, and SPS
3 The TBT Agreement
3.1 Coverage and scope
3.1.1 Technical regulation
3.1.1.1 Document
3.1.1.2 Identifiable product or group of products
3.1.1.3 One or more product characteristics
3.1.1.4 Compliance with the product characteristics must be mandatory
3.1.1.5 Holistic analysis
3.1.1.6 Processes and production methods
3.1.2 Standards
3.1.3 Conformity assessment
3.2 Substantive provisions of the TBT Agreement with regard to technical regulations
3.2.1 Non-discrimination
3.2.1.1 Like products
3.2.1.2 Less favourable treatment
3.2.2 ‘Technical regulations shall not be more trade-restrictive than necessary’ (TBT Article 2.2)
3.2.2.1 ‘First, a “legitimate objective”…’
3.2.2.2 Does the technical regulation ‘fulfil a legitimate objective’?
3.2.2.3 Determining whether the measure is ‘necessary’
1 Degree of contribution
2 The trade-restrictiveness of the measure
3 The nature of the risks at issue and the gravity of consequences that would arise from non-fulfilment of the objective(s) pursued by the member through the measure, taking into account alternative measures
3.3 Obligation to use international standards
3.3.1 Relevant international standard
3.3.2 Use of the relevant international standard as a basis
3.3.3 Is the relevant international standard an effective and appropriate means for the fulfilment of the legitimate objectives?
3.4 Equivalence and mutual recognition
3.5 Performance requirements
3.6 Additional obligations
3.7 Special and differential treatment
3.8 Institutional provisions
4 The SPS Agreement
4.1 Coverage
4.1.1 Sanitary or phytosanitary measure
4.1.2 Trade effect
4.2 Basic rights and obligations
4.3 International standards
4.3.1 Members shall base their sanitary or phytosanitary measures on international standards, guidelines, or recommendations
4.3.2 Deviating from international standards
4.3.3 Burden of proof in cases of deviation from international standards
4.4 Assessment of risk
4.4.1 Introduction
4.4.2 Risk assessment proper
4.4.2.1 The obligation to have recourse to scientific evidence
4.4.2.2 Defining risk
4.4.2.3 Two types of risk assessment
4.4.3 Methodology to be used
4.4.3.1 In general
4.4.3.2 SPS Measures ‘based on’ risk assessment: due process requirements?
4.4.3.3 Taking into account risk assessment techniques developed by the relevant international organizations
4.5 Appropriate level of protection
4.5.1 Determining the appropriate level of protection
4.5.2 Consistency in the application of the appropriate level of protection
4.5.3 Necessity of the SPS measure with regard to the ALOP
4.6 The precautionary principle and the SPS Agreement
4.6.1 The precautionary principle in the WTO and in customary international law
4.6.2 SPS measures adopted as a precaution
4.6.3 Maintaining provisional SPM measures based on SPS Article 5.7
4.7 Selected other provisions of the SPS Agreement
4.7.1 Recognition of foreign SPS policy and measures
4.7.2 Adaptation to regional conditions, including pest- or disease-free areas and areas of low pest or disease prevalence
4.7.3 Control inspection and approval procedures
4.7.4 Procedural obligations
4.7.5 Special and differential treatment
4.8 Institutional provisions
4.9 Dispute settlement provisions
4.9.1 Recourse to experts
4.9.2 Functions of adjudicators vs. functions of experts
4.9.3 Standard of review
5 Conclusions
14 Preferential Trade Agreements
Preliminary Material
1 Disciplining Preferential Trade Agreements
2 The Negotiating History of GATT Article XXIV
3 A View from the World of Economics
3.1 The cost side
3.2 The benefit side
4 The Test for Compliance
4.1 Notification
4.2 Substantially all trade
4.3 External protection cannot be raised
5 PTAs in WTO Dispute Settlement
15 Export Measures and Controls
Preliminary Material
1 Introduction
2 Cases
3 WTO Rules on Export Measures
3.1 WTO discipline on export measures
3.2 Exceptions permitting export measures
4 Export Tariffs
5 Natural Resources
5.1 Critical shortage/short supply
5.2 Creating competitive advantages for domestic downstream industries
5.3 Export measures necessary to protect human, animal, or plant life, or health
5.4 Export restrictions in conjunction with restrictions on domestic production and consumption
5.5 Export measures on natural resources: a tangle of inconsistent legal rules
6 Agricultural Commodities
7 Security Exceptions
7.1 GATT Article XXI
7.2 Extraterritorial application of export controls
8 Preferential Trade Agreements and Export Restrictions
9 Conclusions
16 Trade in Services
Preliminary Material
1 Introduction to the GATS and Trade in Services
2 The Relationship between the GATT and the GATS
3 The Scope of the GATS: Liberalization of Trade in Services
3.1 Definition of ‘service’
3.2 Definition of trade in services (modes of supply)
3.3 Measure by a member
3.4 Affecting trade in services
4 General Obligations
4.1 Unconditional general obligations
4.1.1 General most favoured nation obligation
4.1.1.1 Likeness of services and likeness of services suppliers
4.1.1.2 Immediately and unconditionally
4.1.1.3 Less favourable treatment
4.1.2 MFN exceptions
4.1.2.1 Annex on MFN exemptions
4.1.2.2 Economic integration
(a) Agreement liberalizing trade
(b) Substantial sectoral coverage
(c) Elimination of substantially all discrimination
(d) Conditions regarding trade with third parties
(e) Transparency
4.1.2.3 Mutual recognition agreements
4.1.3 Transparency
4.1.4 Domestic regulation
4.1.5 Competition-related requirements
4.2 Conditional general obligations
4.2.1 Domestic regulation
4.2.1.1 Developing disciplines on domestic regulation
4.2.1.2 Provisional application of Article VI:4 principles
4.2.2 Transparency
4.2.3 Monopolies
4.2.4 Payments and transfers
4.3 Other obligations under negotiation: emergency safeguards and subsidies
4.3.1 Safeguards
4.3.2 Subsidies
4.4 Institutional provisions
5 Specific Commitments
5.1 Introduction: schedules of specific commitments
5.1.1 The scheduling modalities
5.1.2 The 1993 and 2001 Scheduling Guidelines
5.1.3 Structure of schedules
5.1.4 Changes in specific commitments
5.1.4.1 Multilateral modification of schedules
5.1.4.2 Unilateral modification of schedules
5.2 Market access under the GATS
5.2.1 Introduction
5.2.2 Relationship between Article XVI:1 and Article XVI:2
5.2.3 Forms of quantitative limitations
5.2.4 Relationship with the national treatment obligation
5.2.5 GATS Articles XVI and VI
5.2.6 GATS Articles XVI and XIV
5.3 National Treatment
5.3.1 Introduction
5.3.2 The test for establishing a violation of NT
5.3.2.1 Specific commitments must have been undertaken
5.3.2.2 Measure affecting trade in services
5.3.2.3 Like services or service suppliers
5.3.2.4 Treatment no less favourable
5.3.3 Relationship with other provisions
5.3.3.1 Subsidies
5.3.3.2 GATS Articles XVII and VI:5
5.4 Additional commitments
5.4.1 Overview
5.4.2 The mechanics of scheduling additional commitments
5.4.3 Relationship with other provisions
5.4.3.1 GATS Articles XVIII and II
5.4.3.2 GATS Articles XVIII and VI
5.4.3.3 GATS Articles XVIII and XIV
5.4.3.4 GATS Articles XVIII and XXI
6 General Exceptions
6.1 Introduction
6.2 Necessity in GATS Article XIV
6.3 Public interests protected by GATS Article XIV
6.3.1 Public morals and public order
6.3.2 Human, animal or plant life, or health
6.3.3 Measures to secure compliance with GATS-compatible laws and regulations
6.3.4 Discriminating measures relating to taxation and double taxation agreements
6.4 Compliance with the chapeau of GATS Article XIV
7 Overview: Specific Rules for Telecommunications and Financial Services
7.1 Telecommunications
7.1.1 Sources of law
7.1.1.1 The Annex
7.1.1.2 The Reference Paper
7.1.1.2.1 The rationale for negotiating the Reference Paper
7.1.1.2.2 The Reference Paper summarized
(a) Anti-competitive practices envisaged
(b) Interconnection
(c) International interconnection
(d) Cost-oriented rates for interconnection
7.1.2 Scheduling commitments regarding telecommunications
7.1.2.1 The telecoms specificity of the Services Sectoral Classification List
7.1.2.2 Level of commitments by modes of supply
7.1.2.3 Types of limitations maintained
7.2 Financial services
7.2.1 The Annex on Financial Services
7.2.1.1 Financial services
7.2.1.2 Financial service supplier
7.2.1.3 Prudential carve-out
7.2.2 The Understanding on Commitments in Financial Services
8 Conclusions
17 Intellectual Property
Preliminary Material
1 Introduction
2 Types of Intellectual Property Rights Addressed in the TRIPs Agreement
3 Overview of the TRIPs Agreement
4 Institutional Arrangements
5 Provisions Relating to Developing Countries
6 Public Policy Criticisms
6.1 Benefits and costs of higher IP standards for developing countries
6.2 Patentability
6.3 Protection of traditional knowledge and culture
6.4 Biological diversity
6.4.1 Access to genetic resources
6.4.2 Transfer of technology
6.4.3 The disclosure solution
6.5 Health and access to medicines
6.5.1 Compulsory licensing
6.5.2 Parallel imports
6.5.3 Beyond the TRIPS Agreement
6.6 Food and farmers’ rights
7 The General Principles of the TRIPs Agreement
7.1 The relationship between the TRIPs Agreement and other intellectual property treaties
7.2 Acquisition and maintenance of intellectual property rights
7.3 National treatment and most favoured nation treatment
8 Minimum Substantive Standards
8.1 Copyright and related rights
8.2 Patents
8.2.1 Patent excludability
8.2.2 Limited exceptions
8.2.3 Compulsory licensing
8.2.3.1 Differing views on compulsory licensing
8.2.3.2 Provisions in the TRIPs Agreement
8.2.4 Criticisms of the patentability Article of TRIPs
8.3 Trademarks and service marks
8.4 Geographical indications
8.5 Undisclosed information or trade secrets
8.6 Industrial designs
8.7 Layout designs of integrated circuits
9 Enforcement of Intellectual Property Rights under the TRIPs Agreement
9.1 General principles
9.2 Civil and administrative procedures and remedies
9.3 Criminal procedures
9.4 Border measures
9.5 Provisional measures
9.6 Dispute settlement
10 Exhaustion of Intellectual Property Rights
11 Restrictive Business Practices
11.1 Types of restrictive business practices involved in technology licensing agreements
11.2 Article 40 of the TRIPs Agreement
12 Conclusions
18 Government Procurement
Preliminary Material
1 The Government Procurement Agreement as a Plurilateral Agreement
2 The Background of the Government Procurement Agreement
2.1 A brief history
2.2 The Tokyo Round Agreement
2.3 The WTO Government Procurement Agreement
3 The 2012 Government Procurement Agreement
3.1 An overview of the 2012 Agreement
3.2 Electronic auction
3.3 Scope and coverage
3.4 Security and general exceptions
3.5 General principles—non-discrimination
3.6 Developing countries
3.7 Tendering
3.8 Technical specifications
3.9 Domestic review procedure
3.10 Consultations and dispute settlement
3.11 Negotiations under GATS Article XIII
4 Domestic Implementation
4.1 Article XXIII of the Agreement
4.2 The European Union
4.3 The United States
4.4 Japan
5 Dispute Settlement in Relation to the Government Procurement Agreement
5.1 In general
5.2 GATT/WTO disputes
5.1.1 The Trondheim case
5.1.2 The Korean Inchon Airport case
5.2.3 The State of Massachusetts case
5.2.4 The Japan Railway case—a dispute settlement at challenge procedures
19 Developing Countries
Preliminary Material
1 Bifurcating the GATT Obligations
1.1 The early years
1.2 Haberler vs the Singer–Prebisch Thesis
2 Part IV and the Enabling Clause
2.1 First a waiver
2.2 And then the Enabling Clause
2.3 Lack of reciprocity underlined
3 The Enabling Clause in Practice: The GSP Schemes
3.1 The key elements
3.2 The Enabling Clause in the WTO legal order
3.3 Who are the beneficiaries? Developing countries and LDCs
3.4 Distinguishing beyond the developing countries/LDCs dichotomy
4 Other Provisions on Special and Differential Treatment
5 Institutional Provisions
6 The Limits of WTO Involvement
20 Environmental Protection and Trade
Preliminary Material
1 Introduction
2 Environmentalist Trade Demands: A Critical Analysis
3 The Environmental Impact of Trade
4 The Tuna Dolphin Cases: A False Start
5 The WTO Approach under the GATT 1994
5.1 GATT Article XX(g)
5.2 GATT Article XX(b)
5.3 GATT Article XX(a)
5.4 The chapeau of GATT Article XX
6 Multilateral and Bilateral Environmental Agreements
7 Unilateral Measures
8 Energy
8.1 Export restrictions
8.2 Subsidies
8.3 The Canada—Renewable Energy cases
8.4 Import tariffs and restrictions
9 Protection of Natural Resources
9.1 Raw materials and minerals
9.2 Wildlife
9.3 Forest products
9.4 Water
10 Environmental Standards and Process and Production Methods
10.1 Standards and technical regulations
10.2 Process and production methods
10.2.1 Environmental agreements
10.2.2 Environmental management systems
10.2.3 Investment
11 Recycling and Packaging
12 Eco-labelling
13 The Export of Hazardous Substances and Wastes
13.1 Domestically prohibited goods
13.2 Waste
14 Environmental Taxes
14.1 Taxes on products
14.2 Taxes on resource use
14.3 Taxes on inputs
15 Border Tax Adjustment in Support of Climate Change Legislation
15.1 A domestic carbon tax and border tax adjustment
15.2 Cap-and-trade laws and energy taxes and charges
15.3 Climate change and the TBT Agreement
16 Conclusions
21 Trade and Investment
Preliminary Material
1 Trade and Investment in the GATT/WTO: From High Hopes to Modest Steps
1.1 High hopes in Havana
1.2 The FIRA report
1.3 The failed Multilateral Agreement on Investment (MAI)
2 The Agreement on Trade-Related Investment Measures (TRIMs)
2.1 The scope of TRIMs
2.2 TRIMs and multilateral agreements on trade
2.3 Substantive provisions
2.3.1 TRIMs inconsistent with GATT Article III
2.3.2 TRIMs inconsistent with GATT Article XI
2.4 Procedural obligations
2.5 Institutional provisions
3 The General Agreement on Trade in Services (GATS)
3.1 Investment-relevant specific commitments
3.2 Investment-related GATS disciplines pursuant to mode 3 and mode 4
4 The Agreement on Subsidies and Countervailing Measures (SCM)
5 The Agreement on Trade-Related Aspects of Intellectual Property (TRIPs)
6 The Agreement on Government Procurement (GPA)
7 Outlook
22 Competition Policy and Trade
Preliminary Material
1 Introduction
2 Anti-competitive Conduct that Adversely Affects International Trade
2.1 International, export, and import cartels
2.2 Boycotts, tie-in contracts, and vertical restraints
2.3 Mergers and acquisitions
3 Provisions on Competition Policy in the WTO Agreements
3.1 The Agreement on Technical Barriers to Trade
3.2 Trade in services
3.3 National treatment
3.4 TRIMs
3.5 Antidumping
3.6 Intellectual property and trade-related investment measures
3.7 Voluntary export restraints
4 Extraterritorial Application of Domestic Competition Law
4.1 What is extraterritorial application?
4.2 Conflict of jurisdictions
5 Trade Policy/Laws and Competition Policy
5.1 Trade policy and competition
5.2 The Semiconductor case
5.3 Competition policy implications of the Semiconductor Agreement
5.4 The WTO dispute settlement system and competition policy
5.4.1 The Kodak/Fuji case
5.4.2 The US 1916 Act case
5.4.3 The Canada Dairy case
5.4.4 The Mexico—Telecoms case
5.4.5 Voluntary export restraint and competition policy
5.5 The relationship between antidumping and antitrust
5.5.1 The Fax Paper case
5.5.2 The Malaysian ETR case
5.5.3 The Saskatchewan Potash case
5.5.4 The US–Japan Semiconductor Agreement
5.5.5 Confrontation and compromise between antidumping and competition policy
5.6 Export cartels and import cartels
5.6.1 Export cartels
5.6.2 Import cartels
6 Competition Policy and International Cooperation in the WTO
6.1 Competition policy agenda at the WTO
6.1.1 Activities of the working group on trade and competition policy in the WTO
6.1.2 Review of the working group’s reports
6.1.3 Consensus
6.1.4 Divergent views
6.1.5 The Ministerial Declaration on Competition Policy adopted at the Doha Ministerial Conference in November 2001
7 Concluding Remarks
Further Material
Index
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Table of Court and Administrative Decisions
From:
The World Trade Organization: Law, Practice, and Policy (3rd Edition)
Mitsuo Matsushita, Thomas Schoenbaum, Petros C. Mavroidis, Michael Hahn
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford International Law Library
Published in print:
15 October 2015
ISBN:
9780199571857
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