How to Methodically Research WTO Law

Transcription

1 The Research Cycle (Steps 1-5)... 1 Step 1 Identify the Basic Facts and Issues... 1 Step 2 Identify the Relevant Provisions... 3 A. By subject approach to identifying relevant provisions... 3 B. Top down or deductive approach to identifying relevant provisions... 4 C. Identifying secondary provisions that may be relevant to the interpretation of directly applicable provisions... 5 Step 3 Identify Relevant Jurisprudence and Interpretative Rules... 6 A. WTO Jurisprudence... 6 B. Interpretative Rules... 8 Step 4 Note up Jurisprudence... 8 A. Jurisprudence Citator... 8 B. Dispute Settlement Body (DSB) Minutes... 9 Step 5 Fine Tune Research Step 6 Identify Pending Jurisprudence The Research Cycle (Steps 1-5) The first step in the research cycle is gathering basic facts and identifying basic issues. As you proceed through steps 2-5, your research may uncover additional relevant facts and issues that may require you to supplement the facts and revise the issues. When this occurs, you may have to re-start the research cycle at step 2 using the revised facts and issues. Continue this cycle until you have identified and researched all relevant facts and issues. Step 1 Identify the Basic Facts and Issues The research cycle starts with gathering the basic facts (e.g., the measure and the effects of the measure) and identifying the basic issues that arise from those facts. In order to identify basic issues consider the following: What are the measures at issue? Identify the government act or omission, the goods, services or other subject matter, and the effects at issue. In principle, any act or omission attributable to a WTO Member could be a measure that is subject to the rights and obligations in the WTO agreements. Generally, the agreements do not concern actions by private persons acting independently of their governments. However, in certain circumstances, actions which appear on their face Copyright , TLG Partnership All rights reserved Page 1

2 Do the facts involve trade in goods? to be private actions might be attributable to a government. The multilateral agreements on trade in goods may be relevant. Applicable to trade in goods generally: General Agreement on Tariffs and Trade 1994 (GATT 1994) Agreements relevant to specific subject matter: Agreement on Agriculture Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-dumping Agreement) Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement) Agreement on Import Licensing Procedures Agreement on Preshipment Inspection Agreement on Rules of Origin Agreement on Safeguards Agreement on Subsidies and Countervailing Measures (SCM Agreement) Agreement on Technical Barriers to Trade (TBT Agreement) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) Agreement on Trade-Related Investment Measures (TRIMS Agreement) Do the facts involve trade in services? Do the facts involve intellectual property rights? Do the facts involve government procurement? Do the facts involve civil aircraft? Do the facts involve procedural issues in WTO dispute settlement? Do the facts involve more than one of the above? The General Agreement on Trade in Services (GATS) may be relevant. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) may be relevant. The Agreement on Government Procurement may be relevant. The Agreement on Trade in Civil Aircraft may be relevant. The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) may be relevant. A combination of the above agreements may be relevant. Also consider whether the facts indicate discrimination, market access concerns, restrictions or obstacles to trade, the absence of transparency, government assistance or subsidies and/or the treatment of developing countries because these are some of the basic issues that are addressed in the WTO agreements. Once you have identified the basic facts and issues, you are ready to move to steps 2-5. Copyright , TLG Partnership All rights reserved Page 2

3 Step 2 Identify the Relevant Provisions WTO law is treaty-based and the necessary starting point is therefore the identification of the relevant agreements, instruments and provisions. The Marrakesh Agreement Establishing the World Trade Organization (referred to as the WTO Agreement) is the umbrella agreement of which the other WTO agreements and instruments listed in its annexes form an integral part. In addition there are WTO Ministerial decisions, declarations and other instruments which vary in legal status and application. Declarations generally reflect recognition of a matter and lack the greater authority of a decision. Decisions and declarations are commonly referred to in the interpretation of the provisions of relevant agreements. Decisions can also create substantive rights. 1 Issue A. By subject approach to identifying relevant provisions One approach to identifying relevant provisions is to identify the provisions by subject matter. This approach is most effective if you are able to substantially narrow down the issues during stage 1. For example, if the basic facts pertain to trade in agricultural products and involve discrimination against imports, you can research all provisions pertaining to agriculture and discrimination. Relevant research tool TradeLawGuide s Subject Navigator enables you to do this. Here is an example using the term agriculture. You can review the treatment of agriculture under the relevant agreements and instruments. 1 For example, the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (1979 Enabling Clause) has been interpreted as an exception to Article I:1 of the GATT Copyright , TLG Partnership All rights reserved Page 3

4 Or you can review the treatment of agriculture by more detailed subject matter. As you click through these branches and cross-references, the relevant provisions will be displayed. Issue B. Top down or deductive approach to identifying relevant provisions The top down or deductive approach to identifying relevant provisions involves starting with a list of WTO agreements, instruments and provisions and crossing off those agreements, instruments and provisions that you determine are not relevant. Assume that everything is relevant until you analyze the provisions and determine their inapplicability. Only cross off those entries that you are confident are not relevant. When in doubt, leave the provision, instrument or agreement on the list for further study. At the end of this process you will be left with a short list of potentially relevant agreements, instruments and provisions. This is the most comprehensive way to identify relevant provisions. It protects against relying on only the most obvious provisions and missing other relevant provisions. Relevant research tool TradeLawGuide s Subject Navigator lists the WTO agreements and instruments and provides detailed subject indices. Copyright , TLG Partnership All rights reserved Page 4

5 You can use the checklist in the appendix below to keep track of your deductive research. Issue C. Identifying secondary provisions that may be relevant to the interpretation of directly applicable provisions There may be provisions that are indirectly relevant to your research. For example, if the basic facts pertain to trade in agricultural goods and involve discrimination against imports in favour of domestic like products, the national treatment obligations set out in the various paragraphs of Article III:4 of the GATT 1994 will be relevant. Although not directly relevant because it applies to trade in services rather than trade in goods, the national treatment obligation in Article XVII:1 of the GATS could be indirectly relevant insofar as the jurisprudence interpreting it could be helpful in understanding the concept of "less favourable treatment" under a national treatment provision. Relevant research tools TradeLawGuide s Subject Navigator provides this information. You should also consult Terms & Phrases to identify provisions that include specific terms and phrases that are relevant to your research even though those provisions may be in other agreements and instruments that are not directly relevant to your research. Once you have identified all of the relevant and potentially relevant provisions, you are ready to move on to the next step. Copyright , TLG Partnership All rights reserved Page 5

6 Step 3 Identify Relevant Jurisprudence and Interpretative Rules The third step involves identifying relevant jurisprudence and interpretative rules. Issue A. WTO Jurisprudence Researching WTO jurisprudence (i.e., reports, awards and decisions) not only expedites the interpretative process, it is a necessary part of that process. WTO jurisprudence is not legally binding except to resolving a particular dispute between parties. Notwithstanding the absence of binding precedent or stare decisis, it has been determined that WTO jurisprudence should be taken into account where relevant. Moreover, following the Appellate Body s conclusions in earlier disputes is not only appropriate but is what is expected from panels where the issues are the same. The Appellate Body has recognized that ensuring "security and predictability" in the dispute settlement system, as contemplated in.2 of the DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case. The legal interpretation embodied in adopted panel and Appellate Body reports becomes part of the acquis of the WTO dispute settlement system. It is therefore necessary to identify all WTO jurisprudence that substantively refers to the provisions you are researching. A substantive reference is one made in the context of substantive reasoning and not solely in the context of argument by a disputing party or other non-substantive context (e.g., introductory remarks). You must identify substantive references that are made in the context of specific findings regarding a provision as well as references made to that provision in the context of the analysis of other provisions. Relevant research tools TradeLawGuide s Annotated Agreements, Article Citator and Terms & Phrases provide you with this information. For example, if your research concerns agricultural products, import restrictions and discrimination against imports in favour of like domestic products, the following illustrates some of the information provided: Where there is an annotated text of a relevant agreement (e.g., the Agreement on Agriculture), consult that text and its annotations. The annotated texts consolidate all of the jurisprudence and other information and will accelerate the research process. Copyright , TLG Partnership All rights reserved Page 6

7 Where there is no annotated text, consult the Article Citator. Consult Terms & Phrases to identify jurisprudence that relates to specific terms. If a particular term or phase in the provision you are researching has not been elaborated upon in jurisprudence, consult Terms & Phrases to see if the term or phrase has been either defined or elaborated upon in jurisprudence in the context of the provisions of another agreement or instrument. Copyright , TLG Partnership All rights reserved Page 7

8 Once you have identified the jurisprudence that is relevant to a provision it is necessary to note up that jurisprudence. This process is discussed in the next step. Issue B. Interpretative Rules Even if there is jurisprudence on a particular provision, it is still necessary to undertake an independent interpretation of that provision even if only to confirm that the meaning of the provision is clear and no ambiguity exists. Where there is no jurisprudence, applying the rules of interpretation will be the primary means of ascertaining the meaning of that provision. Relevant research tool TradeLawGuide s Interpretation tool provides this information. It sets out the provisions and jurisprudence that make up the rules of interpretation that are applicable to the WTO agreements and instruments. Step 4 Note up Jurisprudence A. Jurisprudence Citator As discussed above in step 3 A., it is necessary to take into account relevant WTO jurisprudence and to examine how subsequent cases have considered relevant findings made by other panels and the Appellate Body. Noting up 2 allows you to determine whether relevant jurisprudence is still good law and determine what subsequent adjudicators have said about that jurisprudence. Has the jurisprudence been accepted, rejected or distinguished? This process is invaluable for understanding the interpretation of the jurisprudence and how it has been applied to different facts and circumstances. It must be undertaken methodically and comprehensively. 2 Noting up" is a common law term that refers to examining the judicial treatment of a case (in the United States this process is sometimes referred to as shepardizing ). Copyright , TLG Partnership All rights reserved Page 8

9 TradeLawGuide s Jurisprudence Citator provides this information. It notes up the paragraphs and footnotes of all WTO jurisprudence. A paragraph or footnote of a WTO report, award or decision can be selected and then all jurisprudence that cites that paragraph or footnote can be identified and quickly reviewed. B. Dispute Settlement Body (DSB) Minutes In the WTO context, noting up goes beyond examining subsequent jurisprudence. Reports, awards and decisions are discussed by the disputing parties and other WTO Members during meetings before the Dispute Settlement Body (DSB). Often, these discussions critique the findings made in the jurisprudence and raise policy issues and other matters related to the jurisprudence. If a panel report is adopted and a dispute settled without appealing the findings in the panel report, the reasons for this may also be discussed. It cannot be assumed that the adoption of a panel report without an appeal means that the disputing parties agree with the legal findings in the report. The discussions in the meetings are recorded in the DSB minutes. TradeLawGuide s DSB Minutes tool enables you to quickly review the DSB minutes so you can note up the jurisprudence that you are relying upon. Copyright , TLG Partnership All rights reserved Page 9

10 Step 5 Fine Tune Research Issue Once you have identified the provisions and jurisprudence and have noted up the jurisprudence, you may still have gaps in your research that must be filled. This can be done through a full text search which is best for researching discrete and narrow issues. Relevant research tool TradeLawGuide provides a sophisticated full Text Search tool that incorporates the many innovative features of TradeLawGuide. This includes a filter that allows you to narrow your research of WTO jurisprudence to those reports, awards and decisions that substantively cite specific WTO provisions. Step 6 Identify Pending Jurisprudence Issue The final step in the research process is to determine whether there is any pending jurisprudence relevant to the provisions you are researching. Copyright , TLG Partnership All rights reserved Page 10

11 Relevant research tool TradeLawGuide s Jurisprudence Pending tool enables you to identify relevant pending jurisprudence efficiently. Copyright , TLG Partnership All rights reserved Page 11

12 APPENDIX Checklist for the Top Down or Deductive Research Approach for Identifying Relevant Provisions Note: This checklist includes the results of the Uruguay Round of Multilateral Trade Negotiations that were annexed to the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations along with a few additional instruments. It is not a comprehensive list of post- Uruguay Round instruments. Agreement on Agriculture Annex 1 Annex 2 Annex 3 Annex 4 Annex 5 Attachment to Annex 5 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-dumping Agreement) Annex I Annex II Footnote 8 Footnote Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement) General Introductory Commentary Annex I Annex II Annex III Agreement on Import Licensing Procedures Agreement on Preshipment Inspection Agreement on Rules of Origin Annex I Annex II Copyright , TLG Partnership All rights reserved Page 12

13 Agreement on Safeguards Annex Agreement on Subsidies and Countervailing Measures (SCM Agreement) Annex I Annex II Annex III Annex IV Annex V Annex VI Annex VII Footnote 8 Footnote Agreement on Technical Barriers to Trade (TBT Agreement) Annex 1 Annex 2 Annex 4 Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) Annex A Annex B Annex C Agreement on Trade-Related Investment Measures (TRIMS Agreement) Annex General Agreement on Trade in Services (GATS) Article XVI Article I Article XVII Article II Article XVIII Article III Article XIX Annex, Air Transport Annex, Basic Telecommunications Annex, Financial Copyright , TLG Partnership All rights reserved Page 13

14 Article IV Article V Article VI Article VII Article VIII Article IX Article X Article XI Article XII Article XIII Article XIV Article XV Article XX Article XXI Article XXII Article XXIII Article XXIV Article XXV Article XXVI Article XXVII Article XXVII Article XXIX Annex, Article II Exemptions Services Annex, Maritime Transport Services Annex, Natural Persons Annex, Second Annex on Financial Services Annex, Telecommunications General Agreement on Tariffs and Trade 1994 (GATT 1994) Article XXIV Article I Article XXV Article II Article XXVI Article III Article XXVII Article IV Article XXVII Article V Article XXIX Article VI Article XXX Article VII Article XXXI Article VIII Article XXXII Article IX Article XXXIII Article X Article XXXIV Article XI Article XXXV Article XII Article XXXVI Article XIII Article XXXVII Article XIV Article XXXVIII Article XV Annex A Article XVI Annex B Article XVII Annex C Article XVIII Annex D Article XIX Annex E Article XX Annex F Article XXI Annex G Article XXII Annex H Article XXIII Annex I Note Ad Article I Note Ad Article II Note Ad Article III Note Ad Article V Note Ad Article VI Note Ad Article VII Note Ad Article VIII Note Ad Article XI Note Ad Article XII Note Ad Article XIII Note Ad Article XIV Note Ad Article XV Note Ad Article XVI Note Ad Article XVII Note Ad Article XVIII Note Ad Article XX Note Ad Article XXIV Note Ad Article XXVIII Note Ad Article XXVIIIbis Note Ad Article XXIX Footnote 8 Footnote Note Ad Article XXXVI Note Ad Article XXXVII Note Ad Article XI, XII, XIII, XIV and XVIII Note Ad Part IV Footnote 8 Footnote Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) Footnote 8 Footnote Copyright , TLG Partnership All rights reserved Page 14

15 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) Appendix 1 Appendix 2 Appendix 3 Appendix 4 Footnote 8 Footnote Agreement on Government Procurement Article IX Article I Article X Article II Article XI Article III Article XII Article IV Article XIII Article V Article XIV Article VI Article XV Article VII Article XVI Article VIII Article XVII Agreement on Trade in Civil Aircraft Annex Footnote * - Annex Article XVIII Article XIX Article XX Article XXI Article XXII Article XXIII Article XXIV Notes Annex Article Article Footnote 8 Footnote 9 Article Article 9.11 Annex IA to the WTO Agreement, General Agreement on Tariffs and Trade (Language Incorporating Instruments and Provisions into GATT 1994) Decision on Accession to the Agreement on Government Procurement Decision on Anti-Circumvention Decision on Certain Dispute Settlement Procedures for the General Agreement on Trade in Services Decision on Financial Services Decision on Institutional Arrangements for the General Agreement on Trade in Services Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries Decision on Measures in Favour of Least-Developed Countries Decision on Negotiations on Basic Telecommunications Decision on Negotiations on Maritime Transport Services Decision on Negotiations on Movement of Natural Persons Decision on Notification of First Integration Under.6 of the Agreement on Textiles and Clothing Decision on Notification Procedures Decision on Organizational and Financial Consequences flowing from Implementation of the World Trade Organization Decision on Professional Services Decision on Proposed Understanding on WTO-ISO Standards Information System Decision on Review of 7.6 of the Agreement on Implementation of Article VI of the Copyright , TLG Partnership All rights reserved Page 15

16 General Agreement on Tariffs and Trade 1994 Decision on Review of the ISO-IEC Information Centre Publication Decision on Texts Relating to Minimum Values and Imports by Sole Agents, Sole Distributors and Sole Concessionaires Decision on the Acceptance of and Accession to the Agreement Establishing the World Trade Organization Decision on the Agreements between the WTO and the IMF and the World Bank Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes Decision on the Establishment of the Preparatory Committee for the World Trade Organization Decision on Trade and Environment Decision on Trade in Services and the Environment Decision Regarding Cases where Customs Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared Value Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policymaking Declaration on the Relationship of the World Trade Organization with the International Monetary Fund Fifth Protocol to the General Agreement on Trade in Services Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations Fourth Protocol to the General Agreement on Trade in Services General Interpretative Note to Annex 1A of the WTO Agreement Marrakesh Declaration of 15 April 1994 Marrakesh Protocol to the General Agreement on Tariffs and Trade 1994 Ministerial Declaration on Trade in Information Technology Products Preferential Tariff Treatment for Least-Developed Countries - Decision on Waiver, 1999 Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes Second Protocol to the General Agreement on Trade in Services Third Protocol to the General Agreement on Trade in Services Trade Policy Review Mechanism Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994 Understanding on Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994 Understanding on the Interpretation of Article II:1(b) of the General Agreement on Tariffs and Trade 1994 ("Other Duties and Charges" in Schedules of Concessions) Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994 (State Trading Enterprises) Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994 (Customs Unions and Free Trade Areas) Understanding on the Interpretation of Article XXVIII of the General Agreement on Tariffs and Trade 1994 (Modification of Schedules) Copyright , TLG Partnership All rights reserved Page 16