Diese Dissertation untersucht die Container Security Initiative, eine Sicherheitsmaßnahme der U.S. Zoll- und Grenzschutzbehörde, die als Ziel hat, den Containerverkehr zwischen den Vereinigten Staaten und ihren Handelspartnern vor terroristischen Angriffen zu schützen. Schwerpunkt der Untersuchung ist die Frage, ob die Container Security Initiative mit den Verpflichtungen der amerikanischen Regierung nach dem WTO Recht vereinbar ist. Weiterhin wird gefragt, ob sich im Falle eines Verstoßes gegen die Rechtsvorschriften die Container Security Initiative aufgrund der vorhandenen Ausnahmen in den WTO Abkommen rechtfertigen lässt. ; This dissertation investigates the Container Security Initiative, a security measure of the US Customs and Border Protection Bureau that aims to protect container traffic between the United States and its trade partners against terrorist attacks. The focal point of the investigation is the question whether the Container Security Initiative is compatible with the obligations of the American government under WTO law. Furthermore, the dissertation deals with the question whether the Container Security Initiative can be justified on the basis of the available exceptions in the WTO agreements in the case of infringement.
This volume discusses the law of the World Trade Organization (WTO), the global forum for trade liberalization. It discusses in exhaustive manner the legal framework governing international trade that evolves out of the treaty regime and elaborates upon the major case law issued by the WTO. It further includes references to academic scholarship critiquing the caselaw, as well as discussions of the economic and political science theories of how WTO law is shaped. ; https://scholarship.law.columbia.edu/books/1183/thumbnail.jpg
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.
This article examines legal and institutional aspects of the evolution of China's approach to the dispute settlement mechanism of the World Trade Organization (WTO). It begins by analyzing the impact of China's changing attitude toward international law on the escalation of international economic law research. In particular, the article provides the first detailed examination of China's efforts to strengthen public–private cooperation in building its WTO legal capacity. China established think tanks to bridge the information and communication gaps between the government and industries. To develop its WTO lawyers, the Chinese government has consistently required international law firms to collaborate with domestic firms in major disputes and engaged the latter in third-party cases. Finally, the article evaluates China's assertive legalism strategy that enhances its recent participation in WTO rule-making and disputes against the US and the European Union. This research, therefore, provides a valuable case study for other emerging economies and the multilateral trading system.
The World Trade Organisation (WTO) is an enormously powerful and, therefore, significant international institution for South Africa. Its 148 members account for ninety percent of world trade in which exports account for around a quarter of world GDP. The mandatory nature of WTO agreements, the single undertaking, the strengthened dispute settlement system, the robust trade review process, as well as its widening trade agenda means that it has a major impact on the economic well-being of all its members, including South Africa. Indeed no country, but especially developing countries, can afford to remain outside the WTO regime. Moreover, few developing countries can afford to remain politically isolated within the institution and given the structural and diplomatic capability asymmetries within the WTO, most countries seek alliances with others in order to counter these inequalities and thus strengthen their hand in negotiations.
World Trade Organization (WTO) dispute settlement system through Panel and Appellate Body, allows sanction to be imposed when a member is unwilling to bring a WTO-inconsistent trade measure into conformity. According to the Article 22 of Dispute Settlement Understanding (DSU), if in a certain case WTO Panel finds a party has failed to make new policy in compliance with the WTO rules, the aggrieved party is entitled to obtain retaliation. The WTO retaliation emerges negative impact for some countries in particular developing or small economic countries. This impact denotes the violation of international human rights law, particularly economic rights that stipulate in Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This paper explains the impact that arises when WTO retaliation is imposed to a country whether a developed or developing country, from the perspective of international human rights law.
Empirical studies have shown that government Internet filtering is increasing worldwide. Internet Service Providers have progressively begun to take on filtering responsibility in a quasi-governmental capacity. As filtering has increased, some have begun to question whether Internet filtering might violate WTO commitments under the General Agreement on Trade in Services ("GATS Agreement"). This paper will provide technical background on how Internet filtering is accomplished in practice, and explain the GATS Agreement that was held to govern Internet filtering in the U.S.-Gambling Services decision. This paper will further survey the current range of U.S. filtering actions and detail why tort remedies are a better legal remedy than WTO law for companies affected by U.S. Internet filtering actions.
Empirical studies have shown that government Internet filtering is increasing worldwide. Internet Service Providers have progressively begun to take on filtering responsibility in a quasi-governmental capacity. As filtering has increased, some have begun to question whether Internet filtering might violate WTO commitments under the General Agreement on Trade in Services ("GATS Agreement"). This paper will provide technical background on how Internet filtering is accomplished in practice, and explain the GATS Agreement that was held to govern Internet filtering in the U.S.-Gambling Services decision. This paper will further survey the current range of U.S. filtering actions and detail why tort remedies are a better legal remedy than WTO law for companies affected by U.S. Internet filtering actions.
On 10 November 2001, China finally acceded to the World Trade Organization (WTO) after a marathon negotiation spanning 15 years. China's membership in the WTO raises interesting questions for both the WTO and China. For the WTO, the question is how to deal with China?a huge country of growing importance as a major global exporter and importer but is still in economic transition. For China, the question is how to implement the numerous obligations in the WTO accession package. This paper sets out by reviewing China's experience in the General Agreement on Tariffs and Trade (GATT) and the WTO. It then discusses the benefits and challenges arising from China's WTO accession, in particular the challenges arising from market access commitments and rules obligations. The author is of the view that whilst the market access commitments are relatively easy to deal with, the rules obligations may have much broader implications on both China and the multilateral trading system. This is especially true for the WTO-minus rights provisions which are embodied in the Accession Protocol and Working Party Report of China. Finally, the author analyses the actions taken by the Chinese government since its WTO accession to implement the commitments and to deal with the challenges, and suggests some trade policy reforms.
Agricultural policy in the United States over the past three-quarters of a century has involved supporting farmers in the unpredictable business of growing crops. Until 1973, such domestic supports took the form of a loan-based system that controlled crop prices. The current payment-based system, put into place after 1973, has encouraged over-production and run afoul of WTO trade rules. Moving back to a loan-based system, or incorporating elements of such a system into U.S. agricultural legislation, could potentially cure problems of overproduction and other domestic ills. A loan-based system could also bring the United States back into alignment with WTO trade rules, protecting it from potentially expensive sanctions by other countries. Furthermore, it is important to understand the ramifications of such a loan-based system because all farm bills since 1949 are simply modifications to loan-based "permanent provisions," and in the absence of new legislation, these provisions take effect.
This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate — specifically, intellectual property and antitrust regulation — it reveals more general principles about why the WTO can facilitate agreement in some situations and not in others. Comparing the successful conclusion of the TRIPS Agreement and the failed attempts to negotiate a WTO antitrust agreement indicates that international cooperation is likely to emerge when the interests of powerful states align and when concentrated interest groups within those states actively support cooperation. The comparison further suggests that the WTO provides an optimal forum for cooperation when states need to rely on cross-issue linkages to overcome existing distributional conflicts, when the underlying issue calls for an enforcement mechanism, or when both the net benefits of the agreement and the opportunity costs of nonagreement are high. Contrasting the key differences between IP and antitrust cooperation, this Article disputes the widely held view that the strategic situations underlying IP and antitrust cooperation are similar and that the conclusion of the TRIPS Agreement is a relevant precedent predicting a successful WTO negotiation of antitrust or a host of other new regulatory issues. Given the ongoing changes in the economic and political landscape, cooperation in the WTO is even more challenging today. It is possible that — absent institutional reforms — the WTO's recent expansion may well have met its limits.
This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate – specifically intellectual property and antitrust regulation – it reveals more general principles about when and why the WTO can facilitate agreement in some situations and not others. Comparing the successful conclusion of the TRIPs Agreement and the failed attempts to negotiate a WTO antitrust agreement reveal that international cooperation is likely to emerge when the interests of powerful states are closely aligned and when concentrated interest groups within those states actively support cooperation. They further suggest that the WTO provides an optimal forum for cooperation when states need to rely on cross-issue linkages to overcome existing distributional conflicts, when the underlying issue calls for an enforcement mechanism, or when both the net benefits of the agreement and the opportunity costs of non-agreement are high. Contrasting the key differences between IP and antitrust cooperation, this Article disputes the widely held view that the strategic situation underlying IP and antitrust cooperation are similar and that the conclusion of the TRIPs Agreement is a relevant precedent predicting a successful WTO negotiation on antitrust or a host of other new regulatory issues. Given the ongoing changes in the economic and political landscape, cooperation in the WTO is even more challenging today and it is possible that – absent institutional reforms – the WTO's recent expansion may well have met its limits.
The World Trade Organization (WTO) has two roles. The first is legislative, where the WTO is an international organization in which agreements are signed. The other is judiciary, where the WTO is an international adjudicator deciding trade disputes. The first one is limited to the conduct of trade relations among Members. The second one is to conduct [litigation] brought pursuant to the consultation and dispute settlement provisions of WTO covered agreements. Forced compliance via binding dispute settlement should, theoretically, ensure that each member of an international organization receives all the benefits to which it is entitled, and that no country is required to make concessions to which it has not agreed and which have not been paid for. Dispute Settlement Understanding (DSU) of the WTO, arising from the Uruguay Round negotiations, is generally considered to be the crown jewel of the WTO trading system. Much has been written about its functioning, also a few studies in Polish literature. Since 1995, almost 400 complaints have been filled through the WTO dispute settlement system. The parties often reach a mutually satisfactory solution through consultations in accordance with the WTO Agreements without needing recourse to the panel and Appellate Body review. However, if that fails, the panels, the Appellate Body and the Dispute Settlement Body (DSB) are supposed to resolve the conflict. Only a Member that believes that its benefits have been nullified or impaired by the available measures is entitled to bring a matter before the dispute settlement system. Furthermore, the DSB makes recommendations only when the benefits are found to be nullified or impaired by the measures. This structure indicates the bilateral nature of the WTO dispute settlement system. However, the WTO DSU should not only be seen as a court. In every case, where the agreements cannot be clarified through negotiations, the dispute settlement system serves as their surrogate. The WTO DSU system is better than its GATT predecessor. In general, the system is good and successful. However, it is not free of errors, which I will try to point out. This will be a legal analysis only, without political judgment. Before I proceed with the analysis, the notion of dispute should be clarified. In international law the term dispute means a specific disagreement relating to a question of rights or interests in which the parties proceed by the way of claims, counter-claims, denials and so on. In another definition, dispute in international law is a situation when one entity of international law demands from another one specific action or behavior and such a demand is based on the rules of international law binding for both parties and this other entity resists this action or behaviour. The term dispute is therefore different from the notion of conflict, which means a general state of hostility between the parties. The distinction is important, since opposite to the conflicts, disputes are not entirely undesirable and may have certain valuable characteristics such as an effect of law clarification. In the context of the WTO Dispute Settlement system, the term dispute stands for a situation in which one WTO Member State adopts a trade policy or measure or takes some action, that one or more concerned WTO Members consider to be a breach of the WTO Agreements or a failure to meet obligations under such agreements. In such situation those countries undertake steps with accordance to the Dispute Settlement Understanding. This definition is broad, because the dispute does not arise when a Member State demands ruling of a panel, but already when parties take other available steps (e.g. negotiations) to solve the disagreement between them. ; Bartosz Ziemblicki
This master's thesis was done at Europa-Institut, Universität des Saarlandes, as part of the candidate's master's degree from Faculty of Law, University of Tromsø. ; International trade presupposes access to the domestic markets of other states. In order to ensure access to foreign markets, WTO members negotiate and bind tariffs for goods and market access commitments for services. The legal consequence of binding these commitments is that WTO members may not raise market access barriers beyond the bound level. Yet, consolidating the commitments does not tie the hands of members, as one might expect: Several WTO provisions permit members to modify or withdraw their commitments without violating their WTO obligations. While modification is primarily based on renegotiation, the prominent aspect of the provision is that a member wishing to deviate from its commitments may do so, even if it is unable to secure permission from members affected by the modification. This aspect, which I refer to as 'unilateral modification' is the topic of the thesis. The thesis examines unilateral modification of WTO commitments from different perspectives and different methods: Normative law, dogmatic legal interpretation, comparative methods and the political economy of law. After introducing the topic, the thesis examines, from a de lege ferenda perspective, if and to what degree WTO members should be allowed to unilaterally modify their commitments. Several principles do not support unilateral modifications, while others do. Some principles do not per se determine whether unilateral modifications should be permitted, but govern how unilateral modifications should be done and at what price such modification should come. Having established the object and purpose of permitting unilateral modifications, the main provisions condoning such behavior, GATT Art. XXVIII and GATS Art. XXI, are subjected to dogmatic legal interpretation as provided by the WTO Dispute Settlement Understanding Art. 3.2. The interpretation reveals that unilateral modification is an absolute right, which cannot be curtailed. However, certain procedural requirements must be met before a member unilaterally modifies its commitments, and unilateral modification does not come without a price – certain affected members are given a right to retaliate. Retaliation is not only a remedy for the intra-contractual permissible behavior of unilateral modification; it is also a remedy against breach of WTO obligations. This raises questions on the relationship between unilateral modification and WTO dispute settlement. The thesis looks at similarities and differences between the remedies and consequences thereof, in addition to issues of non-violation complaints and whether a WTO member may unilaterally modify a commitment in a disputed setting. The existence of provisions allowing WTO members to unilaterally modify their commitments has given rise to questions as to whether WTO obligations, in general, and WTO commitments, in particular, are legally binding. The thesis examines the unilateral modification provisions in light of a debate between 'rebalancing' and 'compliance' schools of thought, concerning the object and purpose of enforcement of WTO rules and the legal bindingness of dispute settlement reports (and ultimately WTO rules). It is argued that WTO members are not only bound by WTO obligations but also by their given commitments. Rather than diminishing the binding nature of commitments, the provisions allowing unilateral modification confirm their binding nature.
