WTO Law and Policy: A Political Economy Approach

Cover
Half Title
Title
Copyright
Contents
Preface
List of abbreviations
List of abbreviated cases
Part I Trade Theory, Founding of the WTO, and Key Principles
	1 Trade Theory and the World Trade Organization
		Learning Objectives
		1. Introduction
		2. International Trade Theories
			2.1 Mercantilism
		3. Pre-Classical Theories
			3.1 Pre-Classical: Physiocrats
		4. Classical Economics: Adam Smith
			4.1 Invisible Hand
			4.2 The Division of Labour
			4.3 Absolute Advantage and Factors of Production
		5. Classical Economics: David Ricardo
			5.1 Gold Standard
			5.2 Theory of Diminishing Returns – The Corn Model
			5.3 Theory of Comparative Advantage and Foreign Trade
		6. Classical Economics: Karl Marx
			6.1 Criticism of Classical Economics
			6.2 Historical Materialism and Economic Theory
			6.3 Labour Theory of Value
			6.4 Theory of Rent, Money, and Surplus Value
		7. Liberalism
		8. The Keynesian Economic Thought
			8.1 Historical Background and Writings
			8.2 Keynes and Classical Economic Thought
			8.3 The Theories
			8.4 Keynes’s Legacy
		9. Summary
	2 The World Trade Organization
		Learning Objectives
		1. Introduction: Trade in the Pre- and Post-World War II Era
		2. Origins of the GATT/WTO: Road out of Bretton Woods
		3. Evolution: The GATT to the WTO
			3.1 Negotiating Rounds of the GATT
			3.2 The Uruguay Round of Negotiations
			3.3 The Marrakesh Agreement Establishing the WTO
		4. The Law of the WTO
			4.1 Sources of WTO Law
			4.2 WTO Law and International Law
			4.3 WTO Law and General Principles of Law
				4.3.1 Due Process
				4.3.2 Good Faith (Bona Fide)
				4.3.3 Estoppel and Res Judicata
		5. Mandate of the WTO
			5.1 Objectives of the WTO
			5.2 Functions of the WTO
				5.2.1 Implementation and Administration of Trade Agreements
				5.2.2 Providing a Forum for Trade Negotiations
				5.2.3 Dispute Settlement
				5.2.4 Trade Policy Review
			5.3 Ministerial Conference
			5.4 General Council and Meetings
		6. Summary
	3 Dispute Settlement at the WTO
		Learning Objectives
		1. Introduction
		2. Dispute Settlement in the GATT
		3. Dispute Settlement in the WTO
		4. Theoretical/Legal Framework and Jurisdiction of the DSU
			4.1 Theoretical/Legal Framework
			4.2 Jurisdiction: Exclusive Forum for Adjudication
		5. Recourse to WTO Dispute Settlement
			5.1 Legal Basis of Dispute
			5.2 Categories of Claims
				5.2.1 Violation Complaints
				5.2.2 Non-Violation Complaints
				5.2.3 Situation Complaints
		6. The DSB and Stages of the Dispute Settlement Process
			6.1 Consultation
				6.1.1 Nature and General Features of the Consultation Phase
				6.1.2 Failure to Consult and Period of Consultation
				6.1.3 Plurilateral and Private Consultations
			6.2 Panel: Request, Terms of Reference, and Establishment
			6.3 Multiple Complaints and Joint Panels
				6.3.1 The Panel: Time Scales and Working Procedures
				6.3.2 Burden of Proof
				6.3.3 Panel Report
			6.4 The Appellate Body
				6.4.1 Historical Background
				6.4.2 Appellate Body: Nature and Composition
			6.5 Appellate Review
				6.5.1 Structure, Scope, and Timeframe
				6.5.2 Review of New Issues, and Receipt of New Evidence and Arguments
				6.5.3 Scope and Remit of the Appellate Review Process
		7. Other Features of the WTO Dispute Settlement
			7.1 Amicus Curiae Briefs Before the Dispute Settlement
			7.2 Other Entities of the Dispute Settlement
		8. Implementation and Compliance Review
			8.1 ‘Extension’ Under Article 21.3 DSU
			8.2 Compliance Review Under Article 21.5 DSU
			8.3 Remedies Under Article 22 DSU
		9. Developing Countries and the WTO Dispute Settlement
			9.1 Special and Differential Treatment
			9.2 Special Rules for Developing Country Member States
			9.3 Special Rules, Decision of 5 April 1966
			9.4 Special Rules for Least Developed Country Member States
			9.5 Legal Assistance for Developing Country Member States
		10. Summary
	4 Non-Discrimination: Most-Favoured Nation Treatment
		Learning Objectives
		1. Introduction
		2. The Most-Favoured Nation Obligation Under GATT
			2.1 MFN Treatment Obligation: Origins
			2.2 Nature of MFN Treatment Obligation: Article I:1
			2.3 Interpretation of MFN Obligation: Likeness
				2.3.1 Likeness Under the GATT Era
				2.3.2 Likeness Under the WTO Era
			2.4 MFN Obligation and Special and Differential Treatment
				2.4.1 Special and Differential Treatment Under GATT
				2.4.2 Special and Differential Treatment Under GATT 1994
				2.4.3 Additional Preferential Treatment Vis-à-vis Enabling Clause
			2.5 Exception to MFN: Regional Integration, Quotas, and Waivers
				2.5.1 Regional Integration (GATT Article XXIV)
				2.5.2 Quotas
				2.5.3 Waivers
		3. The Most-Favoured Nation Obligation Under GATS
			3.1 Nature of the MFN Treatment Obligation: Article II:1 of GATS
				3.1.1 Measures Covered Under Article II:1
			3.2 ‘Like’ Service and ‘Like’ Service Suppliers
				3.2.1 Treatment ‘No Less Favourable’
			3.3 Derogation From MFN Obligation Under GATS
		4. Summary
	5 Non-Discrimination: National Treatment
		Learning Objectives
		1. Introduction
		2. Origins and Rationale for National Treatment
		3. National Treatment Provisions of GATT
			3.1 Article III: Objectives
			3.2 Direct and Indirect; De Jure and De Facto Discrimination
			3.3 Article III:2, First Sentence: Fiscal Measures
				3.3.1 Article III:2 Like Products
				3.3.2 Article III:2 Taxed ‘In Excess Of’
				3.3.3 The ‘Aims and Effects’ Test
			3.4 Article III:2, Second Sentence
				3.4.1 Directly Competitive or Substitutable
				3.4.2 Not Similarly Taxed
				3.4.3 Applied so as to Afford Protection
			3.5 Regulatory Measures – Article III:4
				3.5.1 Law, Regulation, or Requirement Affecting the Internal Sale . . .
				3.5.2 Domestic Product Needs to Be ‘Like’ . . .
				3.5.3 Afforded Less Favourable Treatment . . .
		4. National Treatment Obligation Under GATS
			4.1 National Treatment Obligation – Article XVII:1
			4.2 Violation of National Treatment Obligation
				4.2.1 Undertaking of Specific Commitments
				4.2.2 Measures Affecting Trade in Services
				4.2.3 Like Services and Service Suppliers
				4.2.4 Treatment No Less Favourable
		5. Summary
Part II General Exceptions, Non-Tariff Barriers, Subsidies, CVDs, and AD Measures
	6 General Exceptions Under GATT
		Learning Objectives
		1. Introduction
		2. General Exceptions Under GATT 1994
			2.1 Drafting History and the Chapeau to Article XX
			2.2 Article XX of GATT: Remit, Nature, and Function
			2.3 Two-Tier Test Under Article XX and Burden of Proof
			2.4 Particular Exceptions Under Article XX: (a), (b), (d), (g)
				2.4.1 Exceptions Under Article XX(a): Public Morals
				2.4.2 Exceptions Under Article XX(b): Protection of Human, Animal, or Plant Life or Health
					2.4.2.1 The First Element: Design and Structure
					2.4.2.2 The Second Element: ‘Necessity’
					2.4.2.3 Burden of Proof
				2.4.3 Exceptions Under Article XX(d): Secure Compliance With Laws or Regulations
					2.4.3.1 The First Element: Design
					2.4.3.2 The Second Element: Secure Compliance
					2.4.3.3 The Third Element: Necessity
				2.4.4 Exceptions Under Article XX(g): Conservation of Exhaustible Natural Resources
					2.4.4.1 The First Element: ‘Conservation of Exhaustible Natural Resources’
					2.4.4.2 The Second Element: ‘Relating To’
					2.4.4.3 The Third Element: ‘Made Effective in Conjunction With’
				2.4.5 Exceptions Under Article XX(j): Acquisition or Distribution of Products in Short Supply
				2.4.6 Exceptions Under Article XX(e) and XX(f)
		3. Summary
	7 Tariff and Non-Tariff Barriers
		Learning Objectives
		1. Introduction
		2. Tariffs and Customs Rules: The Political Economy
			2.1 GATT/WTO Tariff Negotiations
			2.2 Negotiations and Reduction of Customs Duties
				2.2.1 Tariff Negotiations and Article XXVIII bis
				2.2.2 Protection of Tariff Concessions: ODCs
			2.3 The Schedules of Concession and Classification of Goods
			2.4 Types of Customs Duties/Tariffs
				2.4.1 Ad Valorem and Non- Ad Valorem Tariffs
				2.4.2 Tariffs: Bound, Applied, and TRQ
			2.5 The DSB’s Interpretation of Schedules of Commitments
		3. Customs Duties and Other Charges on Exports
			3.1 Export Duties: History and Political Economy
			3.2 Rules on Export Duties
			3.3 Debates and the Proposal for Change
		4. Non-Tariff Barriers/Measures: NTBs
			4.1 The Political Economy of NTBs: GATT and WTO
			4.2 Quantitative Restrictions: Rules and Types
				4.2.1 The Scope of ‘Restriction’
				4.2.2 Quantifying the Limiting Effect of the Measure at Issue
				4.2.3 De Facto Prohibitions or Restrictions
			4.3 Exceptions to Article XI:1
		5. Customs-Related NTBs
			5.1 Agreement on Customs Valuation
			5.2 Agreement on Import Licensing Procedures
			5.3 Agreement on Pre-Shipment Inspection
			5.4 Agreement on Rules of Origin
		6. Summary
	8 Economic Emergency Measures
		Learning Objectives
		1. Introduction
		2. The Political Economy of Safeguards
		3. The Safeguard Regime Under GATT/WTO
			3.1 Formation of Safeguard Measures in the GATT and WTO
			3.2 Uruguay Round and Beyond
		4. Article XIX GATT and the Safeguard Agreement
			4.1 Safeguard Agreement
				4.1.1 Investigation and Provisional Application
				4.1.2 Increased Imports and ‘Unforeseen Development’
				4.1.3 Determination of Injury
					4.1.3.1 Serious Injury and Threat of Serious Injury
					4.1.3.2 Factors to Be Considered
					4.1.3.3 Identifying the Relevant Domestic Industry
					4.1.3.4 Causation and Non-Attribution
		5. Special Safeguard Measures Under WTO Agreements
			5.1 Special Safeguard Measures Under Agreement on Agriculture
			5.2 Emergency Safeguard Measures Under GATS
		6. Balance-of-Payments Measures
			6.1 Political Economy of BOP Measures and the GATT
			6.2 Balance-of-Payment Measures Under GATT 1994
				6.2.1 Nature and Scope of Balance-of-Payment Measures
			6.3 Balance-of-Payment Measures Under GATS
		7. Summary
	9 Subsidies and Countervailing Measures
		Learning Objectives
		1. Introduction
			1.1 Political Economy of Subsidies and Subsidised Trade
			1.2 The Concept of Subsidy
				1.2.1 Financial Contribution
					1.2.1.1 Direct Transfer of Funds
					1.2.1.2 Foregone or Not Collected Revenue
					1.2.1.3 Purchase of Goods or Provision of Goods and Services
				1.2.2 Benefit Conferred
				1.2.3 Specificity of the Subsidy
				1.2.4 ‘Government or Public Body’
		2. Regulation of Specific Subsidies Under the SCM Agreement
			2.1 Prohibited Subsidies
				2.1.1 Export Subsidies
				2.1.2 Import Substitution Subsidies
			2.2 Actionable Subsidies
				2.2.1 Causing Injury to Domestic Industry
					2.2.1.1 Like Products
					2.2.1.2 Domestic Industry
					2.2.1.3 Injury
					2.2.1.4 Causation
				2.2.2 Subsidies Causing Nullification, Impairment, or Prejudice
				2.2.3 Market Definition
				2.2.4 Displacement and Impediment to Imports
				2.2.5 Causation and Article 6.3
					2.2.5.1 Causation, the ‘But for’ Approach
			2.3 Actionable Subsidies and Special Remedies
			2.4 Non-Actionable Subsidies
		3. Imposition of Countervailing Duties
			3.1 Procedures for Investigation and Imposition of CVDs
			3.2 Conduct of CVD Investigation
				3.2.1 Concluding the Investigation
			3.3 Imposition and Collection of CVDs
				3.3.1 Duration and Review of CVDs
					3.3.1.1 Administrative Review
					3.3.1.2 Sunset Review
					3.3.1.3 Judicial Review
				3.3.2 Institutional and Procedural Provisions
		4. Special and Differential Treatment for Developing Country Member States
		5. Subsidies Provisions in Other WTO Agreements
			5.1 Agreement on Agriculture
			5.2 GATT
			5.3 TRIMs Agreement
		6. Summary
	10 Dumping and Anti-Dumping Measures
		Learning Objectives
		1. Introduction
		2. WTO Law on Dumping
			2.1 History and Political Economy of Dumping
			2.2 Dumping: Types and Practice
		3. The Anti-Dumping Legal Framework of the WTO
			3.1 Article VI of GATT
			3.2 The Anti-Dumping Agreement
			3.3 Investigation of Dumping
				3.3.1 Adequacy of Evidence
				3.3.2 Evidence and Due Process
			3.4 Determination of Dumping: Normal Value, Export Price
				3.4.1 Normal Value, Export Price, and ‘Like Product’
				3.4.2 Zeroing
				3.4.3 Non-Market Economies
			3.5 Determination of Injury to Domestic Industry
				3.5.1 Domestic Industry
				3.5.2 Injury
				3.5.3 Material Injury
				3.5.4 Threat of Material Injury
			3.6 Causation
		4. Imposition of Dumping
			4.1 Provisional AD Measures
			4.2 Price Undertakings
			4.3 Imposition and Collection of AD Duties
			4.4 Duration and Review of AD Duties
			4.5 Anti-Circumvention of AD Duties
		5. Institutional and Procedural Requirements of AD Agreement
			5.1 Dispute Settlement and Review of AD Measures
			5.2 The Committee on Anti-Dumping Practices
		6. Special and Differential Treatment for Developing Country Members
		7. Summary
Part III GATS, TRIPS, TBT, and SPS Agreements
	11 Trade in Services
		Learning Objectives
		1. Introduction
			1.1 Political Economy of GATS: The Uruguay Round of Negotiations
		2. Objectives and Obligations of GATS
			2.1 Scope, Definition, and Services Covered
			2.2 Modes of Supply
			2.3 The Relationship Between GATT and GATS
		3. General Obligations and Disciplines
			3.1 Most-Favoured Nation (MFN) Treatment Obligation
			3.2 Transparency Obligations
			3.3 Domestic Regulation
		4. Specific Commitments
			4.1 Market Access Under GATS
			4.2 National Treatment Under GATS
				4.2.1 Establishing Violation of NT Under GATS
				4.2.2 Like Services or Service Suppliers
				4.2.3 Treatment No Less Favourable
			4.3 Market Access Vis-à-vis National Treatment
			4.4 Additional Commitments
			4.5 Withdrawal of Commitments
		5. General Exceptions Under GATS
			5.1 Article XIV: The Two-Tier Analysis
				5.1.1 Article XIV: The Necessity Test
			5.2 Chapeau of Article XIV
			5.3 Economic Integration Exception (Article IV)
			5.4 Derogation From MFN Obligations
		6. Specific Rules for Telecommunications and Financial Services
			6.1 Telecommunications
			6.2 Financial Services
				6.2.1 Prudential Carve-Out
				6.2.2 Understanding on Commitments in Financial Services
		7. Security Exceptions Under GATS
			7.1 Article XIV bis of GATS
		8. Summary
	12 Intellectual Property Rights
		Learning Objectives
		1. Introduction
		2. Political Economy of TRIPS
			2.1 Uruguay Round: Forum Shifting From WIPO to GATT
		3. Intellectual Property Rights: Historical Origins
			3.1 Economic Theories and Private Rights
			3.2 Economic Analysis of Intellectual Property Laws
		4. Objectives and Scope of the TRIPS Agreement
			4.1 Structure and Basic Principles of the TRIPS Agreement
				4.1.1 Intellectual Property
			4.2 TRIPS Agreement and WIPO Conventions
			4.3 The NT and MFN Treatment Obligations
			4.4 Exhaustion of Intellectual Property Rights
		5. Rights Protected Under the TRIPS Agreement
			5.1 Copyright and Related Rights
				5.1.1 TRIPS Agreement and the Berne Convention 1971
				5.1.2 Copyright Protection Under TRIPS
			5.2 Trademarks
			5.3 Geographical Indication
			5.4 Patents
				5.4.1 Compulsory Licencing
				5.4.2 TRIPS Flexibilities for Public Health Purposes
			5.5 Layout Designs of Integrated Circuits
		6. Enforcement of Intellectual Property Rights
			6.1 General Principles
			6.2 Civil and Administrative Procedures and Remedies
			6.3 Provisional Measures and Border Measures
			6.4 Criminal Procedures
			6.5 Acquisition and Maintenance of Intellectual Property Rights
		7. Institutional Provisions of the TRIPS Agreement
			7.1 Council for TRIPS
			7.2 Transparency and Dispute Settlement
		8. Special Rules for Developing Country and LDC Members
			8.1 Transitional Periods
			8.2 Technical Assistance and Transfer of Technology
		9. Summary
	13 Technical Barriers to Trade: TBT Agreement
		Learning Objectives
		1. Introduction: The Role of TBT and SPS Agreements
		2. Scope and Application of TBT Agreement
			2.1 Application of TBT Agreement
				2.1.1 Principal Actors Under the TBT Agreement
				2.1.2 Temporal Scope of the TBT Agreement
			2.2 TBT Agreement and Other WTO Agreements
				2.2.1 The GATT 1994
				2.2.2 The Agreement on Government Procurement and the SPS Agreement
		3. Substantive Provisions of the TBT Agreement
			3.1 MFN and NT Treatment Obligations
				3.1.1 Technical Regulations
				3.1.2 Like Products
				3.1.3 Treatment No Less Favourable
			3.2 ‘Least Trade Restrictive’
				3.2.1 ‘Legitimate Objective’
				3.2.2 ‘Not More Trade Restrictive Than Necessary’
			3.3 The Obligation to Use International Standards
				3.3.1 ‘Existence of Relevant International Standards’
				3.3.2 International Standards ‘As a Basis’ for Domestic Standards
				3.3.3 ‘Ineffective and Inappropriate International Standards’
		4. Other Substantive Provisions of the TBT Agreement
			4.1 Equivalence and Mutual Recognition
			4.2 Performance Requirements
			4.3 Transparency and Notification
			4.4 Special and Differential Treatment
		5. Institutional Provisions of the TBT Agreement
			5.1 TBT Committee
			5.2 Dispute Settlement and TBT Agreement
			5.3 Technical Assistance
		6. Summary
	14 Technical Barriers to Trade: SPS Agreement
		Learning Objectives
		1. Introduction: The Role of SPS Agreements
		2. Scope and Application of the SPS Agreement
			2.1 Measures to Which SPS Agreement Applies
			2.2 The Temporal Scope of the SPS Agreement
			2.3 SPS Agreement and Other WTO Agreements
				2.3.1 The GATT 1994
				2.3.2 The TBT Agreement
		3. Substantive Provisions of the SPS Agreement
			3.1 Basic Principles
				3.1.1 The Right to Take SPS Measures
				3.1.2 ‘Only to the Extent Necessary’
				3.1.3 Scientific Basis for SPS Measures
				3.1.4 No Arbitrary or Unjustifiable Discrimination
			3.2 International Standards and Harmonisation
			3.3 Obligation to Assess Risk
				3.3.1 Risk Assessment
				3.3.2 Based on Risk Assessment
				3.3.3 Appropriate Level of Protection
				3.3.4 ‘Not More Trade Restrictive Than Required’
			3.4 The Precautionary Principle and SPS Agreement
				3.4.1 Where SPS Measures Are Adopted as a Precaution
				3.4.2 Maintaining Provisional SPM Measures Based on Article 5.7
		4. Other Substantive Provisions of the SPS Agreement
			4.1 Recognition of Foreign SPS Policy and Measures
			4.2 Adaptation of Regional Conditions
			4.3 Control Inspection and Approval Procedures
			4.4 Transparency and Notifications
			4.5 Special and Differential Treatment
		5. Institutional Provisions of the SPS Agreement
			5.1 SPS Committee
			5.2 Dispute Settlement
				5.2.1 Scientific Experts
				5.2.2 Standard of Review
			5.3 Technical Assistance
		6. Summary
Part IV RTAs, Environment, Human Rights, and Reform of the WTO
	15 Regional Trade Agreements
		Learning Objectives
		1. Introduction
		2. History of RTAs: Regionalism
		3. Political Economy of RTAs
		4. Article XXIV of the GATT: Customs Unions and FTA Exceptions
			4.1 Customs Unions
				4.1.1 Conditions for the Formation of a Customs Union
			4.2 Free-Trade Areas
			4.3 Interim Agreements
		5. Special Rules for Developing Country Member States
		6. Obligation to Notify the CRTA
		7. RTAs and Dispute Settlement at the WTO
		8. Emergence of Mega-RTAs
		9. Summary
	16 Environment, Human Rights, and Trade
		Learning Objectives
		1. Introduction
		2. GATT, the WTO, and the Environment
		3. Sustainable Development and the WTO
		4. Jurisprudence on Environmental Issues
			4.1 US – Tuna I (Mexico)
			4.2 US – Tuna II (Mexico)
			4.3 US – Shrimp
			4.4 EC – Approval and Marketing of Biotech Products
		5. RTAs, MEAs, and the Multilateral Trading System
		6. Trade, Human Rights, and the WTO
			6.1 Human Rights Obligations of Member States
			6.2 Human Rights Vis-à-vis WTO Law
			6.3 WTO Agreements and Human Rights
				6.3.1 TRIPS Agreement: Private Rights, Human Rights, and Access to Medicines
				6.3.2 GATS Agreement: Trade in Services and Right to Work
				6.3.3 Human Rights and the DSU
		7. Summary
	17 The Case for a Reform of the WTO
		Learning Objectives
		1. Introduction
		2. The Doha Round: The Failure of Multilateral Negotiations
		3. WTO Working Practice: Consensus-Driven Decision-Making, SDT
		4. The Reform of the DSB
			4.1 Appointment of Appellate Body Members
			4.2 EU’s Solution: The MPIA
		5. The Pandemic and the WTO’s Response
		6. Summary
Index