The national treatment obligation prohibits discrimination between foreign goods, services and service suppliers and domestic goods, services and service suppliers. Under the national treatment obligation, WTO Member Agricola may not treat chocolate from Industria less favourably than it treats its domestic chocolate, once the chocolate from Industria has entered the Agricolan market. Neither may Agricola treat Industrian coffeehouses established in Agricola less favourably than Agricolan coffeehouses.
This book examines the conditions under which PPM measures may be adopted under WTO law de lege lata and de lege ferenda. It analyses in detail the complex case law in this field and its evolution in the last 25 years, as well as the many doctrinal debates around PPM measures and their relevance in the light of the evolution of case law, both under the GATT and the TBT Agreement. Further, it also suggests an original approach to the interpretation of the relevant provisions of the GATT and the TBT Agreement in the context of PPM measures. The PPM issue has been one of the most debated topics in the trade and environment debate. Even though the US-Shrimp case showed that PPM measures are not prohibited per se under the GATT, many questions remain unanswered when it comes to the precise conditions under which environmental PPM measures are justifiable under WTO law, for example in the field of trade measures relating to climate change mitigation efforts, natural resources management policies and biodiversity conservation measures
There are two functions of the state liability principle. The first is to secure individual rights (including economic rights) from a wrongful act conducted by a government, and the second is to compensate for damage caused by the infringement of individual right. Economic right is inherently allowing an individual to pursue economic interest both domestically or globally. In order to accommodate this right, a government is obliged to provide trade rules and mechanisms for every individual to conduct their global economic activities by participating in the WTO. The objective of the WTO significantly corresponds to the individual's right in order to obtain trade benefits. Hence, when a government infringes trade rules and mechanisms underlined in WTO Law, it will directly restrict individuals from gaining trade benefits under the WTO or, moreover, it will restrain individuals from enjoying their inviolable economic rights. When the right is violated, and the damage occurs, it thus leads to the obligation for the government to compensate the damage according to the state liability principle. This article discusses the nexus between the state liability principle and WTO Law, in order to encourage national courts to exercise the function of state liability by referring to the infringement of economic rights caused by the violation of WTO Law.
The book explores the impact of WTO law on domestic regulatory autonomy. It identifies and critically analyses the mechanisms working in WTO law that cause increasing interferences with domestic law and thus restrain the regulatory autonomy of the WTO members. The book proposes ways how WTO law be conceptualized to enhance the policy space of WTO members. Therefore, the book demonstrates the flexibilities in interpreting and applying WTO core principles and provisions and explores interpretive and institutional conceptions that could serve as a pathway of allocating greater policy leeway to WTO members. The analyses presented address the disturbing observation that even though WTO law appreciates the regulatory leeway of WTO members in several provisions across agreements, the WTO judiciary´s case law, but also other governance mechanism active in the WTO appear to narrow down the WTO members´ regulatory autonomy and to considerably limit the space for domestic policy choices. Wide spread, even scholarly perception of the WTO, and most recently the Trump administration blame the WTO, in particular its dispute settlement branch, for being biased towards free trade and unduly restraining even legitimate domestic policies, and voiding the domestic policy space needed for addressing societal concerns and global problems. A closer look at the development of GATT/WTO law, however, reveals that, in GATT era, panels were aware of the effect their interpretations had on domestic policy space, and that some of the more recent WTO dispute settlement reports show attempts to expand WTO member´s leeway again. These observations are the starting point for an in-depth analysis of the different mechanisms present in WTO law which impact on domestic regulation.
In October 2014, the European Union requested consultations with Russia under the WTO's dispute settlement system regarding Russia's tariff treatment of various agricultural and manufacturing products. Although most of the measures challenged by the EU were individual tariff lines, the final measure in its complaint was a "more general measure" referred to as the systematic duty variation. A WTO dispute panel eventually ruled that the EU failed to establish the systematic nature of the duty treatment afforded by Russia to certain products. In this paper, we explore the dispute panel's ruling, as well as how claims of systematic non-compliance are treated in other legal settings. We conclude by exploring whether future WTO panels should instead consider statistical evidence of systematic treatment to promote compliance.
Abstract Simple and elegant as a theoretical concept, an appropriate level of sanitary or phytosanitary protection (ALOP) has proven complicated to implement in World Trade Organization (WTO) dispute settlement. While the Appellate Body has insisted that ALOP must be defined with sufficient precision to apply the relevant provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), 'high or conservative' remains as precise a formulation of ALOP as one can get. Despite the Appellate Body's clear guidance that SPS measures are not to be confused with ALOP, panels – including the Appellate Body – have routinely mistaken one for the other. The most to suffer has been Article 5.5 of the SPS Agreement, which prohibits 'arbitrary distinctions' in ALOPs applied 'in different situations'. By substituting differences in SPS measures for differences in ALOPs and finding two different situations, i.e. two ALOPs, where there is only one, the jurisprudence has eviscerated this provision of its meaning and converted it into a peculiar version of the least-trade-restrictive-measure requirement. This article takes stock of the panel and Appellate Body jurisprudence on ALOP and offers some thoughts, de interpretatione ferenda, on the direction that future jurisprudence should take.