CONTENTS. 1 International trade and the law of the WTO 1. 2 The World Trade Organization 74

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1 CONTENTS List of figures xv Preface xvii Table of WTO cases xix Table of GATT cases liii 1 International trade and the law of the WTO 1 1 Introduction 1 2 Economic globalisation and international trade Emergence of the global economy A blessing or a curse? Free trade versus restricted trade International trade to the benefit of all? 26 3 The law of the WTO International rules on international trade Basic rules of WTO law 35 4 Sources of WTO law The Marrakesh Agreement Establishing the World Trade Organization Other sources of WTO law 50 5 WTO law in context WTO law and international law WTO law and national law 63 6 Summary 71 Exercise 1: Globaphiles versus Globaphobes 73 2 The World Trade Organization 74 1 Introduction 74 2 The origins of the WTO The General Agreement on Tariffs and Trade of Uruguay Round of Multilateral Trade Negotiations 79 v

2 vi Contents 3 Mandate of the WTO Objectives of the WTO Functions of the WTO 84 4 Membership and institutional structure Membership of the WTO Institutional structure of the WTO Decision-making in the WTO WTO decision-making in theory WTO decision-making in practice Participation in WTO decision-making Other issues Legal status of the WTO WTO budget Summary 152 Exercise 2: To join or not to join? WTO dispute settlement Introduction Jurisdiction of the WTO dispute settlement system Nature of the jurisdiction Scope of the jurisdiction Access to the WTO dispute settlement system Right of recourse to WTO dispute settlement Access of Members other than the parties Indirect access to the WTO dispute settlement system Key features of WTO dispute settlement Single, comprehensive and integrated system Different methods of dispute settlement Multilateral dispute settlement Preference for mutually acceptable solutions Mandate to clarify WTO provisions Remedies for breach Institutions of WTO dispute settlement Dispute Settlement Body Panels The Appellate Body Other entities involved in WTO dispute settlement Process of WTO dispute settlement General observations on the WTO dispute settlement process Consultations 269

3 vii Contents 6.3 Panel proceedings Appellate Body proceedings Implementation and enforcement Developing-country Members and WTO dispute settlement Special rules for developing-country Members Legal assistance for developing-country Members Future challenges to WTO dispute settlement Summary 304 Exercise 3: Right over might Most-favoured-nation treatment Introduction Most-favoured-nation treatment under the GATT Nature of the MFN treatment obligation of Article I:1 of the GATT MFN treatment test of Article I:1 of the GATT Most-favoured-nation treatment obligation and the Enabling Clause of the GATT Most-favoured-nation treatment under the GATS Nature of the MFN treatment obligation of Article II:1 of the GATS MFN treatment test of Article II:1 of the GATS Summary 345 Exercise 4: Tyres National treatment Introduction National treatment under the GATT Nature of the national treatment obligation of Article III of the GATT National treatment test for internal taxation on like products National treatment test for internal taxation on directly competitive or substitutable products National treatment test for internal regulation National treatment under the GATS Nature of the national treatment obligation of Article XVII:1 of the GATS National treatment test of Article XVII:1 of the GATS Summary 414 Exercise 5: Beer 416

4 viii Contents 6 Tariff barriers Introduction Customs duties on imports Definition and types Purpose of customs duties on imports Customs duties as a lawful instrument of protection Negotiations on the reduction of customs duties Tariff concessions and Schedules of Concessions Protection of tariff concessions Modification or withdrawal of tariff concessions Imposition of customs duties on imports Other duties and charges on imports Definition and types Rule regarding other duties or charges on imports Measures exempted from the rule Customs duties and other duties and charges on exports Definition and purpose Rules applicable on export duties Summary 474 Exercise 6: Carlie goes to Europe Non-tariff barriers Introduction Quantitative restrictions on trade in goods Definition and types Rules on quantitative restrictions Administration of quantitative restrictions Special and differential treatment Other non-tariff barriers on trade in goods Lack of transparency Unfair and arbitrary application of trade measures Customs formalities and procedures Government procurement laws and practices Other measures and actions Market access barriers to trade in services Definition and types of market access barriers Rules on market access barriers Negotiations on market access for services Schedules of Specific Commitments Modification or withdrawal of commitments 530

5 ix Contents 5 Other barriers to trade in services Lack of transparency Unfair and arbitrary application of trade measures Licensing and qualification requirements and technical standards Government procurement laws and practices Other measures and actions Summary 537 Exercise 7: Shoe Ease General and security exceptions Introduction General exceptions under the GATT Key features of Article XX of the GATT Two-tier test under Article XX of the GATT Specific exceptions under Article XX of the GATT Chapeau of Article XX of the GATT Policy space for Members to protect other societal values General exceptions under the GATS Two-tier test under Article XIV of the GATS Specific exceptions under Article XIV of the GATS Chapeau of Article XIV of the GATS Security exceptions under the GATT 1994 and the GATS Article XXI of the GATT Article XIV bis of the GATS Summary 600 Exercise 8: Tetra Pack containers Economic emergency exceptions Introduction Safeguard measures under the GATT 1994 and the Agreement on Safeguards Requirements for the use of safeguard measures Domestic procedures and notification and consultation requirements Characteristics of safeguard measures Safeguard measures under other WTO agreements Safeguard measures under the Agreement on Agriculture Safeguard measures under China s Accession Protocol Safeguard measures under the GATS 635

6 x Contents 4 Balance-of-payments measures under the GATT 1994 and the GATS Balance-of-payments measures under the GATT Balance-of-payments measures under the GATS Summary 646 Exercise 9: Glass producers in dire straits Regional trade exceptions Introduction Proliferation of regional trade agreements Regional trade exceptions under the GATT Exceptions relating to customs unions Exceptions relating to free trade areas Interim agreements Special and differential treatment of developing-country Members Regional trade exceptions under the GATS Requirements for economic integration agreements Labour markets integration agreements Special and differential treatment of developing-country Members Institutional and procedural matters Summary 671 Exercise 10: Stepping stone or stumbling block? Dumping Introduction Basic elements of WTO law on dumping History of the law on dumping Concept of dumping WTO treatment of dumping Response to injurious dumping Current use of anti-dumping measures Determination of dumping Normal value Export price Comparison of the export price with the normal value Determination of injury to the domestic industry Domestic industry Injury Demonstration of a causal link Relevant factors Non-attribution requirement Cumulation 711

7 xi Contents 6 Anti-dumping investigation Initiation of an investigation Conduct of the investigation Public notice and judicial review Anti-dumping measures Imposition of provisional anti-dumping measures Price undertakings Imposition and collection of anti-dumping duties Duration, termination and review of anti-dumping duties Problem of circumvention of anti-dumping duties Institutional and procedural provisions of the Anti-Dumping Agreement The Committee on Anti-Dumping Practices Dispute settlement Special and differential treatment for developing-country Members Summary 739 Exercise 11: Dirty play, but by whom? Subsidies Introduction Basic elements of WTO law on subsidies and subsidised trade History of the law on subsidies and subsidised trade Concept of subsidy WTO treatment of subsidies Response to injurious subsidised trade Current use of subsidies and countervailing duties Subsidies covered by the SCM Agreement Financial contribution Financial contribution by a government Financial contribution conferring a benefit Requirement of specificity of the subsidy Prohibited subsidies Export subsidies Import substitution subsidies Multilateral remedies for prohibited subsidies Actionable subsidies Subsidies causing injury Subsidies causing nullification or impairment Subsidies causing serious prejudice Multilateral remedies for actionable subsidies Non-actionable subsidies 813

8 xii Contents 6 Countervailing measures Conditions for the imposition of countervailing duties Conduct of countervailing investigations Application of countervailing measures Countervailing duties or countermeasures Institutional and procedural provisions Transparency and notification requirements Subsidies Committee Dispute settlement Special and differential treatment for developing-country Members Agricultural subsidies under the Agreement on Agriculture Agricultural export subsidies Domestic agricultural support measures The peace clause Summary 845 Exercise 12: Airbus replay Technical barriers to trade Introduction Scope of application of the TBT Agreement Measures to which the TBT Agreement applies Entities covered by the TBT Agreement Temporal scope of application of the TBT Agreement Relationship with other WTO agreements Substantive provisions of the TBT Agreement MFN treatment and national treatment obligations Obligation to refrain from creating unnecessary obstacles to international trade Obligation to base technical barriers to trade on international standards Other substantive provisions Institutional and procedural provisions of the TBT Agreement TBT Committee Dispute settlement Technical assistance Summary 890 Exercise 13: Safe cars 892

9 xiii Contents 14 Sanitary and phytosanitary measures Introduction Scope of application of the SPS Agreement Measures to which the SPS Agreement applies Entities covered by the SPS Agreement Temporal scope of application of the SPS Agreement Relationship with other WTO agreements Substantive provisions of the SPS Agreement Basic principles Goal of harmonisation Obligations relating to risk assessment Obligations relating to risk management Provisional measures and the precautionary principle Other substantive provisions Institutional and procedural provisions of the SPS Agreement SPS Committee Dispute settlement Technical assistance Summary 947 Exercise 14: Healthy fruit Intellectual property rights Introduction The origins and objectives of the TRIPS Agreement Origins of the TRIPS Agreement Objectives and principles of the TRIPS Agreement Scope of application of the TRIPS Agreement Substantive scope of application Temporal scope of application General provisions and basic principles of the TRIPS Agreement Relationship between the TRIPS Agreement and WIPO conventions The national treatment obligation The most-favoured-nation treatment obligation Exhaustion of intellectual property rights Substantive protection of intellectual property rights Copyright and related rights Trademarks 979

10 xiv Contents 5.3 Geographical indications Patents Enforcement of intellectual property rights General obligations Civil and administrative procedures and remedies Provisional measures and border measures Criminal procedures Acquisition and maintenance of intellectual property rights Institutional and procedural provisions of the TRIPS Agreement Council for TRIPS Transparency Dispute settlement Special and differential treatment of developing-country Members Transitional periods Technical assistance and transfer of technology Summary 1013 Exercise 15: Malaria Future challenges 1017 Index 1020