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The World Trade Organization Law, Practice, and Policy

by: Matsushita, Mitsuo; Schoenbaum, Thomas J.; Mavroidis, Petros C.

The World Trade Organization Law, Practice, and Policy

by: Matsushita, Mitsuo; Schoenbaum, Thomas J.; Mavroidis, Petros C.

ISBN 13:
9780199274253
ISBN 10:
0199274258
Format: Paperback
Copyright: 12/02/2004
Publisher: Oxford University Press

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Summary

This book, written by an outstanding team of WTO law specialists, provides a comprehensive overview of the law and practice of the WTO. The authors explain the origins and development, via the GATT, of all of the substantive legal areas covered by the WTO as well as the sources of law and remedies of the Dispute Settlement system.

Table of WTO and GATT Agreements, Treaties, and other International Instruments

xxvii

Tables of National Laws and Regulations

lvii

Tables of WTO and GATT Decisions

lxv

Tables of Court and Administrative Decisions

lxxxix

Overview

The World Trade Organization

(16)

Bretton Woods and the failure of the International Trade Organization

(1)

The GATT becomes an international organization

(1)

A summary of GATT obligations

(2)

The GATT tariff negotiating rounds

(1)

The creation of the WTO

(3)

The WTO: functions and structure

(5)

Membership, accession, and withdrawal

(1)

Decision-making

(1)

General-decision making

(1)

Interpretations

(1)

Waivers

(1)

Amendments

(1)

The WTO as an international organization

(1)

Suggestions for improving the WTO

(3)

Dispute Settlement

(36)

Introduction

(1)

Dispute settlement in the GATT

(2)

WTO dispute settlement

(23)

General considerations

(1)

Institutions

(1)

Scope of application

(2)

The legal effect of panel and Appellate Body reports

(1)

Dispute resolution procedures

(1)

Objectives

(1)

Initiation: request for consultations

(1)

Standing to bring claims

(1)

Good offices, conciliation, and mediation

(1)

Arbitration

(1)

The panel process

(1)

The appeal process

(1)

Implementation

(1)

Reasonable period for implementation

(1)

Compliance and the ``sequencing'' problem

(2)

Compensation for failure to comply and retaliation

(1)

Special dispute resolution procedures

(1)

Non-violation complaints

(1)

Situation complaints

(1)

Adverse inference

(1)

Amicus curiae

(2)

Burden of proof

(1)

Judicial economy

(1)

Standard of review

(3)

Critique of the DSU

(1)

Trade retaliation under national laws

(9)

The European Union

(1)

Japan

(1)

The United States

(4)

Critique of trade retaliation under national laws

(3)

Sources of Law

(24)

Introduction

(2)

Sources of law

(19)

Covered agreements

(1)

Reports of prior panels and the Appellate Body

(1)

Adopted and unadopted panel reports

(8)

Custom

(1)

Teachings of the most highly qualified publicists

(1)

General principles of law

(1)

Other International Instruments

(1)

Agreements referred to in the WTO agreements

(2)

Agreements between the parties

(5)

Conflicts of norms

(1)

Conclusions

(2)

Remedies

(20)

The pre-WTO phase

(2)

The usual GATT remedy

(1)

An alternative remedy: reimbursement and restitution

(1)

Remedies under the Dispute Settlement Understanding

(15)

Violation complaints

(1)

Recommendations and suggestions

(2)

Prospective and retrospective remedies

(2)

Non-violation and situation complaints

(2)

Compensation for failure to comply and retaliation

(1)

Overview

(1)

Measuring countermeasures

(1)

Measuring countermeasures: WTO practice

(2)

The function of countermeasures

(1)

The burden of proof

(1)

The standard of review

(1)

Countermeasures: how effective?

(2)

The case for re-negotiating remedies

(3)

WTO Law and Domestic Law

(14)

Introduction

(2)

The United States

(4)

Overview of U.S. law

(1)

The relationship between WTO law and U.S. law

100

(3)

The European Community

103

(4)

External relations and the EU/EC

103

(2)

The relationship between WTO law and the laws of the EC and its Member States

105

(2)

Japan

107

(4)

Overview of Japanese law

107

(4)

Tariffs, Quotas, and Other Barriers to Market Access

111

(32)

Introduction

112

(1)

Tariffs and customs rules

113

(10)

The nature of a tariff

113

(1)

Welfare effects of tariffs

113

(2)

Tariff modifications

115

(1)

Reclassification

116

(1)

Valuation

117

(2)

Rules of origin

119

(2)

Customs laws and procedures

121

(1)

Customs fees and formalities

122

(1)

Preshipment inspection (PSI)

122

(1)

Quotas

123

(6)

The nature of a quota

123

(1)

Welfare effects of quotas

124

(1)

Prohibition on quotas and other measures that restrain trade

124

(2)

Exceptions to the prohibition on quotas and other measures

126

(2)

Licensing

128

(1)

State-trading enterprises

129

(3)

Technical barriers to trade

132

(1)

Sanitary and phytosanitary measures

133

(2)

Sectoral market access agreements

135

(8)

Agriculture

135

(1)

Basic obligations

135

(2)

Tariffication

137

(1)

Subsidies

138

(2)

The Doha Agenda

140

(1)

Textiles and clothing

141

(1)

Information technology

141

(1)

Electronic commerce

142

(1)

The Most-Favoured-Nation Principle

143

(12)

What is the most-favoured-nation principle?

143

(1)

Policy basis

144

(2)

The MFN principle in customary international law

146

(1)

MFN treatment in the WTO

146

(8)

The MFN obligation under the GATT

147

(2)

Types of ``advantage'' covered by the MFN obligation

149

(1)

Like products

150

(1)

Conditional ``advantage''

151

(2)

Discrimination between firms

153

(1)

Exceptions to the MFN obligations

154

(1)

The National Treatment Principle

155

(26)

What is the national treatment principle?

156

(2)

National treatment: some key issues

158

(9)

``Like'' products

158

(1)

Article III:2, first sentence

159

(1)

Article III:2, second sentence

159

(1)

Article III:4

160

(1)

The aim and effects test

161

(1)

The product-process distinction

162

(1)

Technical regulations and sanitary and phytosanitary measures

163

(1)

Application of Article III to state-trading monopolies

164

(1)

Application of Article III national treatment obligations to sub-federal units of WTO Members

165

(1)

The relationship between Article III and Article XI of the GATT

166

(1)

Taxes

167

(4)

Scope

168

(1)

Border tax adjustment

168

(1)

The non-discrimination principle

169

(2)

Government regulations

171

(2)

De Facto discrimination

173

(3)

Article XX exceptions

176

(1)

Government procurement

177

(4)

Safeguards

181

(36)

Introduction

182

(1)

The legal and policy framework for safeguards in the GATT/WTO regime

183

(1)

GATT Article XIX and the Agreement on Safeguards

184

(18)

GATT Article XIX

184

(1)

The Safeguards Agreement

184

(1)

The relationship between GATT Article XIX and the Safeguards Agreement

185

(1)

Investigation

186

(1)

Provisional application

187

(1)

Determination of increased imports

187

(1)

Unforeseen developments

187

(2)

Determination of injury

189

(1)

Serious injury or threat of serious injury

189

(1)

Serious injury

190

(1)

Threat of serious injury

190

(1)

Factors to be considered when determining injury or threat thereof

191

(1)

Domestic industry

192

(1)

Causation

192

(2)

Limits on the application of safeguard measures

194

(1)

Parallelism

194

(3)

Extent of safeguards

197

(1)

Selectivity

198

(1)

Developing countries

198

(1)

GATT Article XIII

199

(1)

Duration and review

199

(1)

Notification and consultation

200

(1)

Compensation

200

(2)

The standard of review for safeguard disputes

202

(1)

Safeguard measures for balance-of-payment reasons

202

(6)

The GATT

202

(4)

The WTO

206

(2)

Safeguard measures in textile and clothing trade

208

(1)

Prohibition on voluntary export restraints

209

(8)

Prohibition in the Safeguards Agreement

209

(2)

Tension between voluntary export restraints and competition policy

211

(1)

The automobile VER case

211

(3)

The steel VER case

214

(1)

Analysis of the conflict between trade policy and competition policy

215

(2)

Export Controls and National Security

217

(10)

Introduction

217

(1)

Export restraints

218

(1)

Export taxes

219

(1)

Security exceptions

220

(4)

Extraterritorial application of export controls

224

(2)

Conclusions

226

(1)

Trade in Services

227

(32)

Introduction

228

(1)

Overview of the General Agreement on Trade in Services

229

(3)

The relationship between GATT and GATS

232

(2)

The WTO model for liberalization of trade in services

234

(6)

When to negotiate in the context of GATS

234

(1)

The concept of ``services''

235

(1)

Modes of supply

236

(1)

Measures ``affecting trade in services''

237

(2)

When are GATS commitments binding?

239

(1)

General obligations and specific commitments

239

(1)

Institutional issues

239

(1)

General obligations under the GATS

240

(6)

The GATS ``positive list'' approach

240

(1)

The MFN clause

240

(2)

Transparency

242

(1)

Domestic regulation and mutual recognition

243

(2)

Anticompetitive practices

245

(1)

Subsidies

245

(1)

Safeguards

245

(1)

Developing countries

246

(1)

Exceptions

246

(1)

Specific commitments

246

(6)

The limits of general obligations

246

(1)

Market access (Article XVI)

247

(1)

The national treatment obligation (Article XVII)

247

(3)

The relationship between Article XVI and Article XVII

250

(1)

Additional commitments

251

(1)

Modification of schedules

251

(1)

Financial services, telecommunications, and maritime transport

252

(6)

What is so special about these agreements?

252

(1)

The Agreement on Financial Services

252

(2)

The Agreement on Telecommunications

254

(3)

The Agreement on Maritime Transport

257

(1)

Conclusions

258

(1)

Subsidies and Countervailing Duties

259

(42)

Introduction

260

(3)

The legal framework

263

(3)

Articles XVI and VI of GATT 1994

263

(1)

The SCM Agreement

264

(1)

The SCM Agreement and agricultural subsidies

265

(1)

Institutions and notifications

265

(1)

Developing countries

266

(1)

The regulation of subsidies

266

(20)

Definition of subsidy

266

(3)

The financial contribution by a government must confer a benefit to the recipient

269

(2)

The subsidy must be specific

271

(1)

Subsidies are defined by reference to domestic law

271

(1)

The classification of subsidies

272

(1)

The ``traffic light'' approach

272

(1)

Prohibited subsidies

272

(1)

Who determines whether a subsidy is a prohibited one?

273

(1)

Remedies against prohibited subsidies

274

(1)

WTO jurisprudence on prohibited subsidies

274

(2)

Punitive damages in the WTO?

276

(1)

Retroactivity

277

(1)

Actionable subsidies

278

(4)

Non-actionable subsidies

282

(1)

Research and development subsidies

282

(1)

Regional subsidies

283

(1)

Environmental subsidies

284

(1)

Who determines whether a subsidy is a non-actionable one?

285

(1)

Can non-actionable subsidies become actionable?

286

(1)

The regulation of countervailing duties

286

(12)

Overview of procedural and substantive obligations

286

(1)

Investigation

287

(1)

Initiating an investigation

287

(1)

Evidentiary issues

288

(1)

The duties of the investigating authority

289

(1)

Provisional application

290

(1)

Determination of subsidy

291

(1)

Determination of injury

291

(2)

Domestic industry

293

(1)

Causation

293

(1)

The imposition of definitive countervailing duties

294

(1)

Duration and review

295

(1)

Judicial review

295

(1)

Undertakings (suspension of countervailing duty investigations)

296

(1)

Retroactivity

297

(1)

The standard of review for subsidies and countervailing duties disputes

297

(1)

Conclusions

298

(3)

Antidumping

301

(40)

What is dumping?

302

(5)

Dumping as sales below cost

303

(1)

Dumping as international price discrimination

304

(1)

Duration

305

(1)

Cost analysis

305

(1)

Welfare effects

306

(1)

Measures to counteract dumping

306

(1)

The regulation of antidumping duties

307

(26)

The legal framework of antidumping in the GATT/WTO regime

307

(1)

GATT Article VI

308

(1)

The Antidumping Agreement

308

(1)

Institutions and notifications

309

(1)

Developing countries

309

(1)

Investigation

309

(1)

Initiating an investigation

309

(1)

Evidentiary issues

310

(2)

The duties of the investigating authority

312

(1)

Determination of dumping

312

(1)

Like product

313

(2)

Comparison of third-country prices

315

(1)

Constructed value

315

(2)

Arm's-length transactions and transactions between affiliated parties

317

(1)

Sales below cost

318

(1)

Fair price comparisons

319

(1)

Averaging

320

(1)

Zeroing

321

(2)

Determination of injury

323

(1)

Material injury or threat of material injury

323

(1)

Factors to be considered when determining injury

324

(1)

Factors to be considered when determining threat

324

(1)

Cumulation of injuries

325

(1)

Causation

325

(2)

Domestic industry

327

(1)

The imposition of antidumping measures

328

(1)

Provisional measures

328

(1)

Definitive measures

328

(1)

Retroactivity

329

(1)

Duration and review

329

(1)

Price undertakings (suspension of antidumping duty investigations)

329

(1)

Anti-circumvention

330

(1)

Dispute settlement

331

(2)

Criminal penalties and private remedies

333

(3)

The U.S. 1916 Antidumping Act

333

(2)

Future implications of the panel and the Appellate Report on the 1916 Act case

335

(1)

Conclusions

336

(5)

Regional Trade Agreements

341

(32)

Introduction

342

(3)

Must preferential trade agreements (PTAs) cover both goods and services in the WTO era?

345

(2)

When is a PTA compatible with WTO rules?

347

(17)

The GATT test

347

(1)

The obligation to notify

348

(1)

From GATT working parties to the Committee on Regional Trade Agreements (CRTA): just a cosmetic change?

348

(1)

The timing of the notification

349

(1)

The powers of the CRTA

350

(1)

The CRTA in the context of the GATS

351

(1)

The external trade requirement

351

(1)

Free-trade areas

351

(1)

Customs unions

352

(4)

PTAs in the GATS context

356

(1)

The internal trade requirement

356

(1)

Substantially all the trade

356

(1)

The ordinary meaning of the terms

357

(1)

The context

357

(1)

The object and purpose of the agreement

358

(1)

Subsequent decisions

358

(1)

Subsequent practice

359

(1)

Preparatory work

360

(1)

Conclusion

360

(1)

``Other restrictive regulations of commerce''

360

(1)

The context

361

(1)

Subsequent practice

361

(2)

Preparatory work

363

(1)

Conclusion

363

(1)

The GATS regime

364

(1)

The WTO: less tolerance for PTAs?

365

(8)

Dispute settlement

365

(4)

How will PTAs fare in the WTO?

369

(4)

Developing Countries

373

(22)

The developing world

373

(2)

A bit of history

375

(5)

GATT Article XX (h)

380

(1)

GATT Article XVIII

380

(2)

Part IV of the GATT

382

(1)

The generalized system of preferences

383

(2)

The Global System of Trade Preferences

385

(1)

Special and differential treatment provisions for developing countries in the Uruguay Round

385

(3)

Trade and economic development

388

(1)

Trade and the right to development

389

(1)

Enhancing market access

390

(1)

New initiatives

391

(4)

Intellectual Property

395

(44)

Introduction

396

(3)

Types of intellectual property rights addressed in the TRIPS Agreement

399

(5)

Overview of the TRIPS Agreement

404

(2)

Institutional arrangements

406

(1)

Provisions relating to developing countries

407

(1)

Public policy criticisms

408

(16)

Benefits and costs of higher IP standards for developing countries

409

(2)

Protection of traditional knowledge and culture

411

(1)

Biological diversity

412

(1)

Access to genetic resources

413

(3)

Patentability

416

(1)

Transfer of technology

417

(1)

Health

418

(1)

Compulsory licensing

419

(1)

Parallel imports

420

(2)

Beyond the TRIPS Agreement

422

(1)

Food

423

(1)

The general principles of the TRIPS Agreement

424

(1)

The relationship between the TRIPS Agreement and other intellectual property treaties

424

(1)

Acquisition and maintenance of intellectual property rights

424

(1)

National treatment and most-favoured-nation treatment

425

(1)

Minimum substantive standards

425

(6)

425

(1)

Patents

426

(1)

Patent excludability

426

(1)

Limited exceptions

427

(1)

Compulsory licensing

428

(1)

Differing views on compulsory licensing

428

(1)

Provisions in the TRIPS Agreement

428

(1)

Trademarks and service marks

429

(1)

Geographical indications

430

(1)

Undisclosed information or trade secrets

430

(1)

Industrial designs

431

(1)

Layout designs of integrated circuits

431

(1)

Enforcement of intellectual property rights under the TRIPS Agreement

431

(3)

General principles

431

(1)

Civil and administrative procedures and remedies

432

(1)

Criminal procedures

432

(1)

Border measures

432

(1)

Provisional measures

433

(1)

Dispute settlement

433

(1)

Exhaustion of intellectual property rights

434

(1)

Restrictive business practices

435

(2)

Types of restrictive business practices involved in technology licensing agreements

435

(1)

Article 40 of the TRIPS Agreement

436

(1)

Conclusions

437

(2)

Environmental Protection and Trade

439

(46)

Introduction

440

(4)

Environmentalist trade demands: a critical analysis

444

(1)

The environmental impact of trade

444

(4)

The Tuna Dolphin cases: a false start

448

(3)

The WTO approach under GATT 1994

451

(5)

GATT Article XX (g)

451

(2)

GATT Article XX (b)

453

(1)

The chapeau of Article XX

454

(2)

Multilateral and bilateral environmental agreements

456

(3)

Unilateral measures

459

(1)

Protection of natural resources

459

(2)

Environmental standards and process and production methods

461

(8)

Standards and technical regulations

461

(1)

Process and production methods

461

(4)

Environmental agreements

465

(1)

Environmental management systems

466

(2)

Investment

468

(1)

Recycling and packaging

469

(2)

Eco-labels

471

(2)

The export of hazardous substances and wastes

473

(3)

Domestically prohibited goods

473

(2)

Waste

475

(1)

Environmental taxes

476

(7)

Taxes on products

480

(1)

Taxes on resource use

481

(1)

Taxes on inputs

481

(2)

Conclusions

483

(2)

Technical Barriers, Standards, Trade and Health

485

(36)

Introduction

485

(1)

The GATT, the SPS Agreement, and the TBT Agreement

486

(4)

Health and safety standards under the three agreements

490

(23)

The GATT

490

(2)

``Necessary'': a sliding scale

492

(2)

The Sanitary and Phytosanitary Agreement (SPS Agreement)

494

(1)

Assessing risks on the basis of scientific principles and evidence

495

(4)

Factors to consider when assessing risks

499

(1)

The precautionary principle

500

(1)

Economic factors to consider when assessing risks to animal or plant life or health

500

(1)

Taking into account the objective of minimizing negative trade effects

501

(1)

The objective of achieving consistency in the protection against risk

501

(3)

SPS measures may not be more trade restrictive than necessary

504

(1)

Provisional measures

505

(2)

Burden of proof

507

(1)

The role of expert witnesses

508

(1)

Summary of obligations under the SPS Agreement

509

(1)

The Technical Barriers to Trade Agreement (TBT Agreement)

510

(3)

The Cartagena Biosafety Protocol

513

(6)

Health and safety: a reprise and synthesis

519

(2)

Trade and Investment

521

(18)

Introduction to the trade and investment debate

522

(2)

The legal framework of trade-related investment measures in the GATT/WTO regime

524

(7)

Introduction to the TRIMs Agreement

524

(1)

TRIMs against the background of the GATT

525

(1)

The legal relationship between the GATT and the TRIMs Agreement

526

(3)

The legal relationship between the TRIMs Agreement and other WTO Annex 1A agreements

529

(1)

Investment issues in the GATS

530

(1)

Investment issues in the TRIPS Agreement

531

(1)

The regulation of trade and investment

531

(5)

Analysing whether TRIMs are inconsistent with GATT Article III:4 under the TRIMs Agreement

531

(1)

Analysing whether TRIMs are inconsistent with GATT Article XI:1 under the TRIMs Agreement

532

(1)

Notification of existing WTO-inconsistent TRIMs

533

(1)

Transparency

533

(1)

The obligation to eliminate TRIMs within a transition period

534

(1)

The ``standstill'' obligation

535

(1)

The review of the TRIMs Agreement

535

(1)

Institutional issues

535

(1)

The MAI: a short-lived story

536

(3)

Competition Policy and Trade

539

(50)

WTO and competition policy

540

(5)

Introduction

540

(1)

Anti-competitive conduct that adversely affects international trade

541

(1)

International cartels, export cartels, and import cartels

541

(2)

Boycotts, tie-in contracts, and vertical restraints

543

(1)

Mergers and acquisitions

544

(1)

Provisions on competition policy in the WTO agreements

545

(5)

Agreement on technical barriers to trade (TBT Agreement)

546

(1)

Trade in services

547

(2)

Intellectual property and trade-related investment measures

549

(1)

Safeguards and antidumping

550

(1)

Extraterritorial application of domestic competition laws

550

(8)

In general

550

(2)

The United States

552

(2)

The European Community

554

(1)

Germany

555

(1)

Japan

556

(2)

Conflict of jurisdictions

558

(7)

In general

558

(1)

The ICI case

558

(2)

The Swiss Watch case

560

(1)

The Laker case

561

(2)

The GE/Honeywell case

563

(1)

Summary

564

(1)

Trade policy and competition policy

565

(3)

Trade policy and competition

565

(1)

The Semiconductor case

565

(2)

Competition policy implications of the Semiconductor Agreement

567

(1)

International cooperation in competition policy

568

(9)

Globalizing economy and the need for convergence of competition law and policy

568

(1)

International cooperation in competition policy

569

(1)

Types of cooperation in competition policy

569

(2)

Positive comity

571

(1)

Cooperation in investigation

572

(1)

Convergence of competition policy and law

573

(2)

The ICPAC Report

575

(2)

The competition policy debates in the WTO

577

(7)

Activities of the working group on trade and competition policy in the WTO

577

(2)

Review of the working group's reports

579

(1)

Consensus

580

(1)

Divergent views

580

(2)

The Ministerial Declaration on Competition Policy adopted at the Doha Ministerial Conference in November 2001

582

(2)

Conclusions

584

(5)

Option 1: A declaration that competition policy is an integral part of the WTO regime

584

(1)

Option 2: A plurilateral agreement

584

(2)

Option 3: A non-binding multilateral framework for cooperation in competition policy

586

(1)

Option 4: A partly-binding multilateral framework

587

(2)

Future Challenges

589

(24)

Three crises

589

(6)

Internal decision-making

590

(2)

Civil society

592

(2)

Developing countries

594

(1)

The multilateral trading system at a crossroads

595

(4)

Societal issues

599

(10)

The environment

599

(2)

Health

601

(1)

Workers' rights

602

(2)

Human rights

604

(1)

The poor

605

(2)

Intellectual property

607

(1)

Transparency

608

(1)

Governance

608

(1)

The Doha negotiating agenda

609

(4)

Index

613

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The World Trade Organization Law, Practice, and Policy

The World Trade Organization Law, Practice, and Policy

9780199274253

0199274258

Summary

Author Biography

Table of Contents

Supplemental Materials

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Amazon no longer offers textbook rentals. We do!

The World Trade Organization Law, Practice, and Policy

The World Trade Organization Law, Practice, and Policy

9780199274253

0199274258

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

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