In April 1994, the ministers of more than a hundred governments signed the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations achieved after seven and a half years of negotiation. The Act comprises the Agreement Establishing the Multilateral Trade Organization with its important Annexes 1 to 4 in its Part II, Ministerial Decisions and Declarations in its Part III and the Understanding on Commitments in Financial Services in Part IV. The WTO came into effect on 1 January 1995 and has 134 Members presently.
This paper addresses German energy policy instruments and their compatibility with WTO rules. Germany and the EU are forerunners in international climate change policy and driving forces behind the 1997 Kyoto Protocol. German energy policy includes approaches to foster electricity generation from renewable resources. Our major question is whether both the policy tools currently applied (standards, taxes and subsidies) and those under consideration (labels, green certificates and border tax adjustment) are compatible with WTO rules. Our findings are that currently neither the design nor the application of the policy instruments are in conflict with WTO rules. However, the setting of production standards for electricity supply is the crucial issue in this debate and if trade in electricity increases, so will the potential for conflict. Rejecting imports because of the way electricity was produced could lead to disputes and to a need for settlements by the WTO legal system. Moreover, when introducing tools like green certificates or border tax adjustments, it is important to find the balance between effectively fostering the reduction of global emissions and eligibility under WTO law.
This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case ("Hormones case") is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular perception, if WTO law is properly interpreted, GMO-related measures, where non-discriminatory against other WTO Members, can pass the test of consistency with even the most stringent of relevant WTO rules.
The American Law Institute project on WTO Law undertakes yearly analysis of the case law from the adjudicating bodies of the WTO. Reporters' Studies for each year cover a wide range of WTO law cases, whose coverage ranges from classic trade in goods issues to intellectual property protection. Each case is evaluated jointly by an economist and a lawyer. Studies do not cover all issues discussed in a case, but seek to isolate the procedural and substantive elements that form the "core" of the dispute. Independent review of the WTO jurisprudence Interdisciplinary approach - analysis from a joint economic and legal perspective Analysis by world leading academics in field of trade law and international economics ; https://scholarship.law.columbia.edu/books/1151/thumbnail.jpg
This Article argues that the U.S. and EC views of the national security interests exceptions reflect competing conceptions of the WTO legal order. Under the first, the WTO is viewed as merely an agreement between states governing a limited issue area, the disciplining of protectionist policies, under which other issue areas are reserved to sovereign state decisionmaking or, alternatively, whatever other international institutions states have separately granted competence for management of the issue. Under this view, the United States might well argue that its Helms-Burton sanctions are outside the jurisdiction of the WTO and instead within the jurisdiction of the United Nations (and, particularly, the Security Council). This Article suggests yet a third mode of interpreting the essential security interests exception that mediates between the two competing conceptions. Drawing on choice of law principles, it argues that the WTO legal order should look to the practices of the United Nations to ascertain the circumstances under which a state could legitimately invoke the essential security interests exception-in particular, to whether the Security Council has ever found a similar situation to warrant international enforcement action. Before articulating this view and applying it to the U.S.-EC dispute, Part II of this Article discusses the alternative conceptions of the WTO that underlie the competing U.S. and EC legal positions. It does so by explicating the debate between Judith Hippler Bello and John Jackson concerning the WTO remedial system, in which Bello suggests a bargain theory of the new WTO as a contract between sovereigns and Jackson argues from the premises of a public law, perhaps even quasi-constitutional, conception. Part H further explores the presuppositions inherent in Jackson's analysis of the administrative law concept of deference as a possible tool for describing the relationship between WTO dispute settlement and national adjudication of antidumping claims. Part III then employs these competing perspectives to develop arguments for and against self-judging interpretations of the WTO national security exceptions and shows how each approach fails to resolve adequately the tension between the supranationalizing effect of WTO law and the enduring importance of national sovereignty. Part IV considers the relationship between the WTO legal order and other structures of governance in the international legal order that are implicated by the two conceptions. It does so by reexamining the question of whether and how, in light of the establishment of an "Organization" for the management of world trade, WTO law can function as a special legal regime, separate from the general principles and rules of international law or the influence of other international institutions. Finally, Part V advances a choice of law approach for interpreting the essential security interests exception that addresses the weaknesses of the bargain and constitutional conceptions. It then applies the choice of law approach to the Helms-Burton dispute. The Article concludes that, although the choice of law approach would not necessarily resolve particularly hard cases, such as that between the United States and European Union over Cuba, it would provide an objective basis for addressing disputes of this kind. It would also encourage principled decisionmaking within each institution, thus benefiting the broader community by publicizing the relationship between issue areas and the tradeoffs and bargaining that occur at the supranational level, furthering the rational allocation of decisionmaking competence and buttressing the legitimacy of the structure of international institutions as a whole.
The World Trade Organization was established in 1995 and the European Community and its Member States became thereby bound by an overwhelming number of international obligations in the field of international trade. The entering into force of the WTO Agreements has been followed by a flood of cases to the European Court of Justice where the applicants have attempted to challenge Community law provisions on the basis of the international obligations imposed on the Community by virtue of the provisions of the WTO Agreements and the decisions made in the framework of the WTO dispute settlement mechanism. The case law of the ECJ concerning the effect of WTO law in the Community legal order has been characterised by 'judicial self-restraint' and deference to the discretion of the political and executive institutions of the Community. As a general rule, the possibility of private parties to challenge Community measures on the basis of WTO law has been ruled out. Under some circumstances WTO provisions, however, may become available to private parties. The reluctance of the Court to let private parties to rely on WTO law may, however, sometimes lead to situations the acceptability of which can be questioned from the point of view of effective judicial protection of the rights of individuals. The transatlantic disputes concerning the banana import regime of the EC and the Community's ban on importation of beef from cattle treated with hormones are notorious. The WTO dispute settlement organs condemned the Community measures in the Bananas1 and Hormones2 cases but the EC failed to amend its legislation to comply with WTO law. As an European, one might to sympathise with the EC for protecting the health of its citizens and refusing to lift the ban on importation of hormone-treated meat. There is, however, more at stake than the respect of international commitments. The non-compliance by the Community also causes damage to private businesses operating within the Community. Most tangibly the consequences of the Community's WTO-illegal behaviour have affected the Community businesses that have suffered heavy losses in face of the retaliatory measures resorted to by the United States under the authorisation of the WTO Dispute Settlement Body (DSB). Article 288(2) EC provides that in the case of non-contractual liability, the Community shall be held liable for the damage caused by its institutions or by its servants in the performance of their duties. Recently, several actions for damages under this Article have been brought by private parties in order to claim compensation for the damage they have suffered due to the WTO-illegal behaviour of the Community. These cases are connected to the non-implementation of the international obligations imposed on the Community in the Bananas and Hormones cases by the WTO dispute settlement organs. Only a few of the cases have led to a judgement so far, and these are the first cases dealing with the issue of whether private entities can invoke WTO law in the context of actions for damages. These cases and their chances of success are the main subject of this article. The Court has rejected all the actions it has dealt with so far and the chances of success of the future actions do not seem very high. First, we are dealing with WTO law and the Court has been very reluctant to let private parties to rely on it. Second, it has been extremely rare that actions for damages under Article 288(2) EC have succeeded. The problem is, however, worth discussing. First of all, an Advocate General recently suggested that individuals should be allowed to rely on WTO law in liability actions under some circumstances where non-implementation by the Community of DSB decisions is involved3. The ECJ did not explicitly accept or reject such a suggestion but the question remains an open one. Moreover, there have recently been some signs of relaxation of the extremely strict criteria for Community liability.
A new competition jurisprudence is emerging within the World Trade Organization ("WTO") and its Dispute Settlement Body ("DSB"). WTO competition jurisprudence comprises all WTO Panel and Appellate Body rulings in cases where what is debated is the existence of a private anti-competitive behavior, the absence of the private competitive conduct that WTO law orders, or certain subject matters that fall within the traditional scope of domestic antitrust legislation, regardless of whether or not the decision provides a WTO solution. Part II of this article presents the WTO self-restraint approach regarding competition and trade before the new millennium, as set out in the Film Report. Part III attempts to untangle the new activist approach from the Panel and AB decision in United States - Anti-Dumping Act of 1916. Part IV postulates that the development of a WTO jurisprudence openly protecting private parties' interests may be behind the new orientation. Part V posits that WTO competition jurisprudence evolves under the tension between the approaches in the Film Report and in the Anti-Dumping Act of 1916. Part VI analyzes the Bovine Hides Report, Part VII draws on the Act, the Bovine Hides Report, and on the new competition dispute, the Telecommunications Case, to present a detailed picture of the possibilities for the development of WTO competition jurisprudence. Part VIII evaluates the Telecommunications Case initiated by the United States to open up the Mexican telecommunications sector, in light of past WTO competition jurisprudence.
Governments everywhere procure goods and services as inputs into the production of public goods and services. Such purchases can account for a substantial share of total demand for goods and services. Governments' tendencies, however, to "Buy National," and other discriminatory purchasing practices, can have high costs. The end result for the world as a whole is likely to be substantially inferior in welfare terms to a cooperative outcome where governments agree to refrain from discrimination. Hence the Government Procurement Act (GPA) aims to subject public purchasing to international competition. However, many developing countries, along with others such as Australia and New Zealand, have refused to join the GPA on the grounds that it is not in their best interest. This volume examines the GPA and discusses what could be done to improve it with a view to expanding its membership. The contributors focus on four broad issues: the negotiating history, content, and operation of the GPA; the economics of the GPA's rules and disciplines; the implementation of the GPA in domestic legal systems; and, finally, possible alternatives to--and improvements on--the current set of multilateral rules and disciplines. Offering the most comprehensive assessment of the subject available, the volume will be of interest to scholars of international trade, as well as people whose work involves them in government procurement, from the buyers and sellers of goods and services to those concerned with legal aspects. ; https://scholarship.law.columbia.edu/books/1144/thumbnail.jpg
The institutionalization of the Dispute Settlement Understanding (DSU) of the World Trade Organization in 1995 has been widely hailed as a triumph of impartial law over national power. The authors argue that the reality of the power of the WTO's Appellate Body falls short of the legalistic model in three essential respects: complainant nations often refrain from bringing cases where the violator is likely to refuse to abide by a negative decision by the Appellate Body; the Appellate Body itself commonly bends the rules of the WTO when confronting powerful defendants; and losing defendants often procrastinate beyond set time limits for compliance, entering into a post-DSU bargaining process with the complainant outside the mechanism of the World Trade Organizaton.
A final point I would make to students who are here today and about to go out into the legal world would be this: I have noticed that what I do is a bit controversial in some places. Why is that so? It is because the world is changing and because, understandably, people have apprehensions about change. It is also because there is very little understanding of what it is that we are doing in Geneva. Consciously, and intentionally, I have spent my first years on the Appellate Body in silence. Vanderbilt is one of the few places where I have spoken. It has been important for all of us who are Members of the Appellate Body to focus on establishing our institution, to speak with one voice, and to submerge our own identities into the system itself. I have tried very hard to do that. But, meanwhile, the world has continued to turn, and with its turning we have watched the growing apprehension around the world about what has come to be called "globalization." Not only in the United States, but in every country of the world, there is apprehension about the challenges globalization poses, and about what it will mean for individual human beings in our daily lives, and in our future together. This is understandable. In considering this, I would simply ask those who are apprehensive about globalization to remember our old friend Thucydides. The WTO is the result, not the cause, of globalization. The choice we face is not between globalization and no globalization. Rather, the choice we face is between an increasingly "globalized" world in which we will be ruled by the arbitrary exercise of economic and political power, or one in which we will have the rule of law. My own view is that we need more international law, not less. We need the rule of law. And we need the WTO.
In wenigen Monaten wird in Katar die Ministerkonferenz der Welthandelsorganisation (WTO) über die Abhaltung einer neuen Handelsrunde entscheiden. Auf Grund der gegenwärtigen Vorarbeiten werden zwei Themenkreise auf der Traktandenliste der Verhandlungen erwartet: erstens die weitere Umsetzung der in der Uruguay-Runde beschlossenen Liberalisierungsmassnahmen in den Bereichen Agrar-, Textil- und Dienstleistungshandel, und zweitens die Behandlung der Fragen über die künftige Zusammenarbeit mit den Nichtregierungsorganisationen (NGOs), die Aufnahme der Volksrepublik China in die WTO und die allenfalls stärkere Ausrichtung der Welthandelsordnung auf den Umweltschutz, das Arbeitsrecht und die Sozialpolitik. Das vorliegende Diskussionspapier hat zum Ziel, die einzelnen Probleme aufzuzeigen und zu analysieren. ; Within a few months' time, the Ministerial Conference of the World Trade Organization (WTO) in Qatar will decide on whether to hold a new trade round. In view of current preparatory work, two topics are expected to form the agenda of the negotiations: first, further implementation of the liberalisation measures agreed in the Uruguay Round in agriculture, textiles and services, and second, the treatment of issues concerning future cooperation with non-governmental organisations (NGOs), the accession to the WTO of the People's Republic of China and a stronger orientation of the world trading order towards environmental protection, labour law and social policy. The present Discussion Paper aims to highlight and analyse the respective problems.
This paper attempts to develop a formal economic framework to analyze the influences of domestic political considerations by democratic governments in shaping the WTO enforcement outcomes following a violation ruling against the defendant. Since a different mix of import and export sectors in the defendant and complainant country will benefit from the various potential enforcement outcomes, they become competing forces which steer the strategic interactions between the disputing governments. The results of the paper illustrate the complainant's strategy in selecting the retaliation list, and the likelihood of the defendant's compliance or compensation in response to the proposed or foreseeable retaliation, given the political and economic environments on both sides of the disputing parties. This paper also captures the possibility of enforcement failures under the current WTO dispute settlement procedure, where the complainant does not have enough retaliation capacity to induce compliance or some form of compensation from the defendant.
This paper attempts to develop a formal economic framework to analyze the influences of domestic political considerations by democratic governments in shaping the WTO enforcement outcomes following a violation ruling against the defendant. Since a different mix of import and export sectors in the defendant and complainant country will benefit from the various potential enforcement outcomes, they become competing forces which steer the strategic interactions between the disputing governments. The results of the paper illustrate the complainant's strategy in selecting the retaliation list, and the likelihood of the defendant's compliance or compensation in response to the proposed or foreseeable retaliation, given the political and economic environments on both sides of the disputing parties. This paper also captures the possibility of enforcement failures under the current WTO dispute settlement procedure, where the complainant does not have enough retaliation capacity to induce compliance or some form of compensation from the defendant.
The most striking aspect of the new World Trade Organization (WTO)' is the extent to which it preserves and consolidates the body of law and practice which has evolved out of the development of the General Agreement on Tariffs and Trade (GATT)2 and related instru- ments. Such preservation and consolidation is deliberate as the pre- amble to the Marrakesh Agreement Establishing the World Trade Organization (Marrakesh Agreement) makes clear.3 The mechanism chosen for the transition from the GAT-T to the WTO was designed to provide a degree of continuity, stability and thereby predictability in the multilateral trading system. Its occurrence is due, in no small measure, to the active role of the GATT Secretariat in pursuing this initiative and to the willingness of representatives of governments and the European Communities, present at the close of the Uruguay Round of Multilateral Trade Negotiations at Marrakesh, to agree to it. The Marrakesh Agreement is all the more extraordinary because the antecedent of GATT law and practice was not a succession of one international organization by another international organization nor of treaty succession. Instead, the GATT 1947 - the GAIT which came into force on 1 January 19484 - was integrated into the WTO Agreement, as part of the GATT 1994. The GATT 1994 contains the text of the old GATT 1947, together with all its amendments, correc- tions, decisions and so on, to which were added six understandings and a protocol (consisting of new tariff schedules).5
The term 'implementation' has two meanings in the WTO context. The general meaning refers to all the modalities, mechanisms, and instruments that assist in the application of the WTO Agreements. A more recent meaning, highlighted by the Doha Development Agenda, addresses the 'implementation-related issues and concerns' such as those "raised by many developing-country Members regarding the implementation of some WTO Agreements and Decisions, including the difficulties and resource constraints that have been encountered in the implementation of obligations in various areas." In this regard, the WTO implementation issue refers to the abilities of developing-country Members to implement the existing WTO Agreements and to benefit more from the multilateral trading system, and how the WTO and other Members can help them promote such abilities. The implementation of the WTO Agreements can be analyzed as one umbrella topic. Generally, there are two targets of implementing a multilateral treaty. The first target is to ensure that all Members have the capacity to enjoy the treaty rights or benefits and abide by the treaty obligations (for example, with an effective and honest bureaucracy, economic resources, institutional structures, technical expertise and public support). The second target is to ensure that all Members act in compliance with the treaty and refrain from breaching, by the means of surveillance, supervision or sanction. The first target (the capacity) is always a condition of the second (the compliance). When the Members have no capacity to implement the negotiated WTO obligations, the treaty is noncompliant with the WTO Agreements. In addition to the implementing capacity, other parallel factors such as the intention, the political context and the economic situation of one Member will effectively determine the outcome of implementation and play a more important role in this process. From this perspective, the significance of the Doha Development Agenda is to specify the meaning of 'implementation' to ...
