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This paper provides a detailed explanation how the law of the World Trade Organization regulates environmental subsidies with a focus on renewable energy subsidies. The paper begins by discussing the economic justifications for such subsidies and the criticisms of them and then gives examples of different categories of subsidies. Next the paper provides an overview of the relevant WTO rules and caselaw, including the recent Canada -Renewable Energy case. The paper also makes specific recommendations for how WTO law can be improved, and discusses the existing literature discussing reform proposals. The study further finds that because of a lack of clarity in WTO rules, for some clean energy subsidies, a government will not know in advance whether the subsidy is WTO-legal.

Since 2017, the United States (US) and other World Trade Organization (WTO) members violate their legal duties and democratic mandates given by national parliaments to maintain the WTO Appellate Body (AB) as legally prescribed in Article 17 of the WTO Dispute Understanding (DSU), i.e. as being 'composed of seven persons', with vacancies being 'filled as they arise'. This contribution argues that none of the reasons offered by the US for its blocking of the (re)appointment of AB candidates - on grounds unrelated to the personal qualifications of the candidates - can legally justify its disruptions of the WTO legal and dispute settlement system. Also the European Union (EU) has offered no convincing justification of its failure to protect 'strict observance of international law' in it external relations, as required by Article 3 of the Lisbon Treaty on European Union (TEU) and by Article IX:1 WTO Agreement ('where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting'). The 2018 'Concept Paper' prepared by the EU Commission on 'WTO modernization' indicates no strategy for the obvious problem that the EU objective of 'preserving and deepening the rules-based multilateral system', including 'more effective and transparent dispute settlement including the Appellate Body', is inconsistent with the US strategies underlying US blocking of the AB jurisdiction by preventing the appointment of AB judges, a strategy which was previously applied by the US for blocking third-party adjudication under Chapter 20 of the North American Free Trade Agreement (NAFTA). Trade diplomats have no democratic mandate for disrupting the AB jurisdiction by illegally reducing the number of AB members to one single judge by December 2019 and, thereby, undermining the WTO legal and dispute settlement system. EU trade diplomats must exercise leadership for using the existing legal powers and duties of the WTO Ministerial Conference and General Council under Article IX:1 WTO – if necessary, based on 'a majority of the votes cast' - to initiate and complete the WTO selection procedures for filling AB vacancies and protect the AB as legally defined in Article 17 DSU. Article IX.2 could be used for authoritative interpretations 'taken by a three-fourths majority of the Members' confirming the collective duties of WTO members to fill AB vacancies in case of illegal blocking of AB nominations. WTO law foresees similar majority decisions for the appointment of the WTO Director-General; such majority decisions are necessary for preventing illegal de facto amendments of the WTO legal system, and do not set a precedent for future WTO majority voting on discretionary, political issues, which most WTO diplomats reject as a 'nuclear option'. As suggested by European ordo-liberalism, citizens and democratic institutions must hold trade politicians democratically and legally more accountable for complying with their legislative mandates to implement and modernize, but not to destroy WTO law and dispute settlement.

Accepted manuscript version. Published version available at https://doi.org/10.1163/15718085-13320003. ; In this article, the author assesses whether Canadian Inuit sealers, who have suffered economic damage in the wake of the introduction of the European Union (EU) ban on seal products, can bring an action for damages against the EU before the European Court of Justice. The author reviews why the EU ban on seal hunting violates World Trade Office (WTO) law and discusses if, and why, Canadian Inuit sealers can rely on a violation of the WTO Agreements as a legal basis in a potential claim for damages under EU law. Moreover, the author criticizes the current state of EU law, which does not grant reparation of the economic damage suffered by indigenous communities when carrying out their traditional seal hunts that are protected under UN human rights law.

Using the approach of the United Nations International Law Commission, the law of the Eurasian Economic Union and WTO law might be regarded as autonomous complexes of rules. However, in all current disputes the DSB treats the norms of EAEU law as measures adopted by a specific EAEU member, but not as international law within the meaning of the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical regulation and reveal a number of specific features. First, the EAEU measures are attributable to every EAEU member. Second, the WTO members may try to challenge in the DSB the measures adopted by an EAEU member in its national legislation based on EAEU law that affect national legislation of that EAEU member, rather than EAEU law as such. Third, "forum shopping" may arise, for the same measure can be challenged under EAEU law in the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU Court. The authors conclude that this approach should provide for the Court's right to interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should be made within the context and object of the EAEU Treaty. However, the autonomous EAEU legal order cannot be implemented until the Treaty on Functioning of the Customs Union within the Multilateral Trading System is applicable. ; Using the approach of the United Nations International Law Commission, the law of the Eurasian Economic Union and WTO law might be regarded as autonomous complexes of rules. However, in all current disputes the DSB treats the norms of EAEU law as measures adopted by a specific EAEU member, but not as international law within the meaning of the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical regulation and reveal a number of specific features. First, the EAEU measures are attributable to every EAEU member. Second, the WTO members may try to challenge in the DSB the measures adopted by an EAEU member in its national legislation based on EAEU law that affect national legislation of that EAEU member, rather than EAEU law as such. Third, "forum shopping" may arise, for the same measure can be challenged under EAEU law in the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU Court. The authors conclude that this approach should provide for the Court's right to interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should be made within the context and object of the EAEU Treaty. However, the autonomous EAEU legal order cannot be implemented until the Treaty on Functioning of the Customs Union within the Multilateral Trading System is applicable.

Globalization and the recognition of human rights and constitutionalism by all UN member states entail that also international courts increasingly interpret their judicial mandates and multilateral treaties in conformity with 'constitutional principles' as multilevel governance of transnational public goods (PGs) constraining intergovernmental power politics through judicial protection of transnational rule of law for the benefit of citizens. US President Trump, the 'Brexit', and an increasing number of non-democratic rulers (e.g. in China, Russia, and Turkey) challenge multilateral treaty systems, international adjudication and 'cosmopolitan rights' by 'populist protectionism' prioritizing 'bilateral deals'. This contribution uses the US blockage of the WTO Appellate Body system for illustrating the 'republican argument' that transnational PGs cannot be protected without judicial remedies, rule of law and democratic governance. Adversely affected governments, citizens and courts of justice must hold power politics more accountable so as to protect PGs for the benefit of citizens and their constitutional rights. WTO members should use their power of majority voting for authoritative interpretations of WTO law supporting 'judicial administration of justice' in multilevel governance of the world trading system. Multilevel judicial control of trade regulation legitimizes 'member-driven governance' by protecting rule of law as approved by parliaments for the benefit of citizens, their equal rights and social welfare.

The Chinese term 'local protectionism', refers to China's uncooperative local governments and pertains to the study of China's central-local relations. This internal issue of China's state structure has attracted the attention of WTO scholars with China's WTO accession. At the time China joined the WTO, many scholars expressed their concern that China's compliance with WTO obligations might be hindered by hard-to-control local governments. However, this research topic of the interface between China's local governments and China's WTO obligations has not been followed up by scholars due to the lack of research data. This thesis looks outside the box and develops an innovative approach to study how WTO disputes prompt the Chinese central government to discipline uncooperative local governments and combat local protectionism.In conducting such an innovative research approach, this thesis combines two domains of study: China's interactions with the WTO Dispute Settlement System (DSS) and China's central-local relations. The first study domain finds that China has extensively reformed its domestic governance to implement WTO judicial rulings. This background view reveals that China's domestic governance is subject to WTO's influence, and builds the foundation for understanding China's internal central-local governance change under the impact of WTO disputes. The second study domain reviews how the Chinese central government combats local protectionism. This domain of study identifies that, China's central-local dynamics are informal and political, rather than formal and legal. Within China's vague constitutional framework, the Chinese central government primarily checks local protectionism through political interaction with provincial governments.This innovative combination of two domains of study, China's interactions with the WTO DSS and China's central-local relations, mutually establishes a pattern of international-national-subnational governance impact chain in China. The finding of this pattern develops the research topic on the interface between China's local governments and China's WTO obligations from a unique perspective. By identifying central-provincial political dynamics in selected WTO case studies, this study analyses Chinese central government's voluntary decision to combat local protectionism under pressure arising from WTO disputes, and demonstrates WTO's far-reaching influence on China's internal governance repercussion.

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.

In 2011, the Australian Government introduced plain packaging as part of a comprehensive suite of new and existing tobacco-control measures. The plain packaging measures fully standardized the appearance of tobacco products and their retail packaging. It prohibited the use of certain trademarks and other marks to be used on tobacco products and their packaging (e.g. stylized word marks, composite marks and figurative marks) and permitted the brand, company, or business name and the variant name of the tobacco product to be printed only in a typeface, colour, style and font size prescribed by the regulations. These measures were challenged before the World Trade Organization (WTO) on the ground that they were inconsistent with the Agreement on Technical Barriers to Trade (TBT Agreement) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The Panel dismissed all the claims brought by the complainants and the Appellate Body upheld its findings. The Appellate Body's affirmation of the legality of Australia's plain packaging measures means that countries are likely to follow suit in implementing similar measures, and that they may do so with confidence about the legal status of those measures under WTO law. s findings. The Appellate Body's affirmation of the legality of Australia's plain packaging measures means that countries are likely to follow suit in implementing similar measures, and that they may do so with confidence about the legal status of those measures under WTO law.

The WTO is one of the most important intergovernmental organizations in the world, yet the way in which it functions as an organization and the scope of its authority and power are still poorly understood. This comprehensively revised new edition of the acclaimed work by an outstanding team of WTO law specialists provides a complete overview of the law and practice of the WTO. The authors begin with the institutional law of the WTO (such as the sources of law and remedies of the dispute settlement system), then tackle the principal substantive obligations of the WTO regime (including tariffs, quotas, and MFN). They then move on to consider unfair trade, regional trading arrangements, and developing countries. In its final section the book deals with the consequences of globalization: first, where free trade is seen to be incompatible with environmental protection and, second, where WTO law confronts legal regimes governing issues of competition and intellectual property. ; https://scholarship.law.columbia.edu/books/1130/thumbnail.jpg

This article analyses the main World Trade Organization (WTO) agreements: the 1994 GATT agreement and the agreements on the determination of the customs value and customs origin of goods. It also describes the problems involved in granting the direct effect of this external legislation in the Republic of Lithuania from the time of its accession to the WTO in 2001 and entry into the European Union (EU) in 2004. The article seeks to answer the question of whether the external WTO legislation should be recognised as legal acts in the national legal system, with the capability for direct application in judicial proceedings. The article also considers whether individual persons can invoke the WTO agreements at a national level (in national courts) to protect their legitimate rights and interests in international trade operations. In addition, it includes an analysis of practices followed by judicial authorities in the EU and countries in other regions, including the individual EU member states. The analysis leads to the conclusion that, unlike the case law of the Court of Justice of the European Union, the practices and experience of the Republic of Lithuania are essentially based on the provision that these sources of law could be directly applied at a national level in judicial cases related to the taxation of international trade operations. Analysis of the relevant issues is based on both theoretical (analysis and synthesis, systematic analysis) and empirical methods (the statistical analysis of data, the evaluation and textual analysis of documents – in particular, decisions of national courts and the Court of Justice of the European Union (CJEU)).

This article analyses the main World Trade Organization (WTO) agreements: the 1994 GATT agreement and the agreements on the determination of the customs value and customs origin of goods. It also describes the problems involved in granting the direct effect of this external legislation in the Republic of Lithuania from the time of its accession to the WTO in 2001 and entry into the European Union (EU) in 2004. The article seeks to answer the question of whether the external WTO legislation should be recognised as legal acts in the national legal system, with the capability for direct application in judicial proceedings. The article also considers whether individual persons can invoke the WTO agreements at a national level (in national courts) to protect their legitimate rights and interests in international trade operations. In addition, it includes an analysis of practices followed by judicial authorities in the EU and countries in other regions, including the individual EU member states. The analysis leads to the conclusion that, unlike the case law of the Court of Justice of the European Union, the practices and experience of the Republic of Lithuania are essentially based on the provision that these sources of law could be directly applied at a national level in judicial cases related to the taxation of international trade operations. Analysis of the relevant issues is based on both theoretical (analysis and synthesis, systematic analysis) and empirical methods (the statistical analysis of data, the evaluation and textual analysis of documents – in particular, decisions of national courts and the Court of Justice of the European Union (CJEU)).

This dissertation offers a new perspective from which to view and understand the WTO regime and its participants. The central feature of that new perspective is the concept of legal indigenization. This term generally refers to the process or ideology in which domestic authorities make and implement international or domestic rules in a way appealing to their native features (especially legal traditions), as responses to globalization led by a defective global legal system. The dissertation's core thesis is that the key elements of the legal tradition and culture of a society or political system inevitably and fundamentally influence the ways in which WTO members propose multilateral trading rules and implement their WTO obligations - in ways that have not, until now, been adequately explored and explained in the extensive literature relating to international trade law. In developing and elaborating on that core thesis, this dissertation has six chapters, following an Introduction that summarizes the significance, structure and approach, and terminology of the dissertation. Chapter 1, Review of Literature, comprises two parts. The first part surveys the key academic, professional, and official literature regarding a range of issues that are pertinent to this dissertation. These include such topics as the general character and structure of the WTO regime, specific trade mechanisms, the relationship between WTO law and domestic law, the relationship between WTO law and general international law, principles and interpretation of WTO agreements, the position of developing countries in the multilateral trading system, strategies pursued in international trade negotiations, domestic trade legislation, Free Trade Agreements (FTAs), dispute settlement mechanism, and domestic adjudication of trade issues. The second part of this chapter offers the main findings of the relevant literature. It is those findings, of course, that serve as the foundation as well as starting point for further research as reflected in this ...

Current political challenges facing the WTO Appellate Body raise fundamental questions about the relationship between rules and values in international adjudication. This paper applies insights from legal philosophy to identify the role values should play in WTO adjudication. It argues that nothing about the specifics of WTO law would justify excluding values from adjudication; that the doctrinal, political and institutional context of WTO adjudication makes a positivist account of the role of values untenable; but an anti-positivist account requires complementing established economic accounts of WTO law's purpose with an account of fairness and justice in trade and trade regulation.

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.

In 1994, when most of the world's trading nations agreed to create the WTO, they also agreed to begin to liberalize trade in services. What no one fully realized at the time (and not all realize now) is that those decisions placed the WTO in the midst of internet regulation. Much internet content can be reached from anywhere, making nearly everyone on the internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident, the WTO has put itself in an oversight position for most of the national laws and practices that regulate the internet. Over the last five years, national governments have begun to impose more controls over the internet – in particular, filters that keep certain forms of applications or content out. The inevitable effect is to create barriers to trade in services. Countries have filtered or blocked internet imports without seeming to think twice about the consistency of such actions under WTO law. More such practices will fall under WTO scrutiny in the years ahead. For the most part, WTO oversight will be invisible. Yet in other areas the influence of the WTO will no doubt help shape the future of international internet transactions – and the internet itself. In its introduction to problems of trade in internet-based services, this paper focuses on two cases: one a country and one a product. The national study is of China, among the world's more comprehensive internet regulators. China makes for an interesting case because as a condition to accession to the WTO, it agreed to what has been called "radical" reform of its service practices. Yet at the same time China is among the world's more active filterers of internet services. As we shall see, these two positions are in tension, and while WTO law leaves much room for exceptions, some of China's restrictions may not be easily justifiable under the GATS. The second study is of the company Skype, a provider of voice over Internet services. Skype offers free voice telephone services to anyone with an internet connection. As a consequences, incumbent telephony carriers, often state-owned, have a strong competitive interest in preventing Skype from reaching their customers. The instances of Skype blocking in several countries raise interesting trade in services issues. This paper is meant for two audiences. For those within the world of trade law it clarifies how internet services have leapt beyond what was contemplated in GATS or subsequent telecommunications agreements. The universalization of a network that is a platform for any type of service requires new thinking about how barriers may come about, and how sectoral commitments are interpreted. For those within the world of telecommunications or internet law, this paper introduces the relevance of WTO law to national regulation of internet services. One of the most interesting consequences may be a tempering of what we might call the "Yahoo! Presumption"; that is, the presumption that the burden lies with internet companies to adapt to national legal systems. While still generally true, the tendency in WTO jurisprudence is to put the burden on national governments to justify internet blocking.