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Appellate Body Ruling in China–Publications and Audiovisual Products

  • FRIEDER ROESSLER (a1)

Abstract

I would like to add to the analyses of the authors comments on two questions: First, how should measures falling under the GATT be distinguished from those falling under the GATS? Second, could a measure inconsistent with one WTO agreement be justified by an exception contained in another?

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References

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1 Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010 (‘ChinaPublications and Audiovisual Products’), para. 188.

2 Ibid., para. 196.

3 For an extensive discussion on the properties of electricity, see the WTO Secretariat paper, ‘Energy Services’ (S/C/W/52), 9 September 1998.

4 For a recent confirmation of this jurisprudence see: Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, para. 229 and footnote 437.

5 Appellate Body Report, ChinaPublications and Audiovisual Products, para. 224.

6 Ibid.

7 Ibid., para. 230.

8 Ibid.

9 Ibid., para. 227.

10 Appellate Body Report, China – Measures Affecting Imports of Automobile Parts (WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R), adopted 12 January 2009, para. 178, quoting in part the Panel.

11 Appellate Body Report, ChinaPublications and Audiovisual Products, para. 225.

12 Ibid., footnote 428.

13 Ibid., para. 229.

14 This is not to say that the distinction between trade regulations and trading-rights limitations can easily be made in all cases. However, the difficulty of making that distinction does not exceed the difficulty of distinguishing for example between internal regulations and restrictions on importation (Articles III:4 and XI:1 of the GATT), between standards for services and market-access limitations on the supply of services (Articles VI:5 and XVI:2 of the GATS), or between measures prohibiting the sale of a product and those prescribing product characteristics (Article III:4 of the GATT and Annex 1, paragraph 1, of the TBT Agreement).

15 Piérola, Fernando (2010), ‘The Availability of a GATT Article XX Defence with Respect to a Non-GATT Claim: Changing the Rules of the Game?’, Global Trade and Customs Journal, 5: 172175.

16 Some of these agreements were taken over from the GATT era, during which they operated as independent agreements concluded among different GATT contracting parties with separate dispute-settlement procedures. The decision to incorporate these agreements into the WTO Agreement was taken only in the final stages of the Uruguay Round. Only then were the acceptance procedures set out in the drafts of each of these agreements replaced by a single acceptance procedure in the WTO Agreement.

The views expressed are those of the author and should not be attributed to the ACWL.

Appellate Body Ruling in China–Publications and Audiovisual Products

  • FRIEDER ROESSLER (a1)

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