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The World Trade Organization - Law, Practice, and Policy, 3rd Edition by Matsushita, Mitsuo; Schoenbaum, Thomas J; Mavroidis, Petros C; Hahn, Michael (15th October 2015)
- Preliminary Material
- 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
- 9 Ongoing Work and Activities
- 10 Principal Accomplishments of the GATT/WTO
- 11 Major Challenges Confronting the WTO
- 12 The Doha Development Agenda
- 13 The ‘Bali Package’
- 14 The Future of the WTO
- 2 WTO Law and Domestic Law
- 3 Sources of Law and Principles of Interpretation
- Preliminary Material
- 1 Introduction
- 2 Sources of Law Applicable in WTO Adjudication
- 3 Interpretative Elements (of the WTO Sources of Law)
- 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
- 3.6 The Panel process
- 3.7 The appellate process
- 3.8 Implementation
- 3.9 Compensation for failure to comply and retaliation
- 3.10 Special dispute resolution procedures
- 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
- 4 Lex specialis Remedies
- 5 Prompt Compliance and the Reasonable Period of Time (RPT)
- 6 Compliance Review Pursuant to DSU Article 21.5
- 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
- 7.5 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’
- 2.5 ‘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
- 5 Conclusions
- 7 National Treatment
- Preliminary Material
- 1 National Treatment—A Recurring Theme in All WTO Agreements
- 2 National Treatment Pursuant to GATT Article III
- 3 Article III:2—Internal Taxation
- 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 Tariffs, Quotas, and Other Barriers to Market Access for Goods
- 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
- 5 The Agreement on Agriculture’s Market Access Provisions
- 6 The Agreement on Agriculture’s Domestic Support Provisions
- 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
- 9 Special Treatment of Developing Countries
- 10 The Changing Interests in Agriculture and the Doha Round Negotiations
- 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
- 2.3 Specificity
- 2.1 Financial contribution
- 3 Prohibited Subsidies (‘Red Light Subsidies’)
- 4 Actionable Subsidies (‘Yellow Light Subsidies’)
- 4.1 Actionable due to ‘injury to the domestic industry of another Member’
- 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
- 5 Counteracting Subsidies: The Multilateral Track
- 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
- 6.3 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
- 6.7 Judicial review
- 7 Special and Differential Treatment
- 8 Institutional Set-up
- 11 Antidumping
- Preliminary Material
- 1 What is Dumping?
- 2 The Regulation of Antidumping Duties
- 2.1 The legal framework of antidumping in the GATT/WTO regime
- 2.2 Investigation
- 2.3 Determination of dumping
- 2.4 Determination of injury
- 2.5 Domestic industry
- 2.6 The imposition of antidumping measures
- 2.7 Price undertakings (suspension of antidumping duty investigations)
- 2.8 Anti-circumvention
- 2.9 Dispute settlement
- 3 Criminal Penalties and Private Remedies
- 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
- 3.9 Limits on the application of safeguard measures
- 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
- 5 Safeguard Measures in Textile and Clothing Trade
- 6 Prohibition on Voluntary Export Restraints
- 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
- 3.2 Substantive provisions of the TBT Agreement with regard to technical regulations
- 3.3 Obligation to use international standards
- 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
- 4.2 Basic rights and obligations
- 4.3 International standards
- 4.4 Assessment of risk
- 4.5 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
- 4.7 Selected other provisions of the SPS Agreement
- 4.8 Institutional provisions
- 4.9 Dispute settlement provisions
- 5 Conclusions
- 14 Preferential Trade Agreements
- 15 Export Measures and Controls
- Preliminary Material
- 1 Introduction
- 2 Cases
- 3 WTO Rules on 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
- 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
- 4 General Obligations
- 4.1 Unconditional general obligations
- 4.2 Conditional general obligations
- 4.3 Other obligations under negotiation: emergency safeguards and subsidies
- 4.4 Institutional provisions
- 5 Specific Commitments
- 6 General Exceptions
- 7 Overview: Specific Rules for Telecommunications and 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
- 7 The General Principles of the TRIPs Agreement
- 8 Minimum Substantive Standards
- 9 Enforcement of Intellectual Property Rights under the TRIPs Agreement
- 10 Exhaustion of Intellectual Property Rights
- 11 Restrictive Business Practices
- 12 Conclusions
- 18 Government Procurement
- Preliminary Material
- 1 The Government Procurement Agreement as a Plurilateral Agreement
- 2 The Background of the 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
- 5 Dispute Settlement in Relation to the Government Procurement Agreement
- 19 Developing Countries
- 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
- 6 Multilateral and Bilateral Environmental Agreements
- 7 Unilateral Measures
- 8 Energy
- 9 Protection of Natural Resources
- 10 Environmental Standards and Process and Production Methods
- 11 Recycling and Packaging
- 12 Eco-labelling
- 13 The Export of Hazardous Substances and Wastes
- 14 Environmental Taxes
- 15 Border Tax Adjustment in Support of Climate Change Legislation
- 16 Conclusions
- 21 Trade and Investment
- Preliminary Material
- 1 Trade and Investment in the GATT/WTO: From High Hopes to Modest Steps
- 2 The Agreement on Trade-Related Investment Measures (TRIMs)
- 3 The General Agreement on Trade in Services (GATS)
- 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
- 3 Provisions on Competition Policy in the WTO Agreements
- 4 Extraterritorial Application of Domestic Competition Law
- 5 Trade Policy/Laws and Competition Policy
- 6 Competition Policy and International Cooperation in the WTO
- 7 Concluding Remarks
- 1 The World Trade Organization
- Further Material
