Some cases attain “landmark” status because they constitute a jurisprudential paradigm shift. Others attain such status because in them a decisor, usually a supreme jurisdiction, renders a definitive, “canonical,” ruling. Sometimes it is both reasons. Sometimes, rarely, it is neither. EC – Asbestos is such a rare case. It may well qualify as a landmark. It has, justifiably, attracted huge attention and, understandably, considerable controversy. Its reasoning, however, is so decidedly non-definitive that it is not, consequently, possible to say whether it represents a veritable paradigm shift or is just a badly reasoned case by the Appellate Body (AB), albeit with a non controversial result.

This study discusses the ruling of the Appellate Body (AB) in the recourse to Article 21.5 of the DSU by Malaysia in the context of the US import prohibition of certain shrimp and shrimp products from a legal and economic perspective. The first part of the chapter (section 2) discusses the background of the case, and, in particular, presents the main issues at stake in the Panel and AB decisions in the original case as well as their main findings. Section 3 discusses the key elements of the compliance panel and its subsequent appeal and identifies a few issues that are discussed in further detail. In section 4, in the context of a simple model, we first consider the consequences of making imports contingent on the adoption of environmental measures in exporting countries. We find that the attractiveness of such measures depends heavily on the characteristics of abatement technology and the range of policies available in the exporting countries. Finally, section 5 briefly discusses the trade-off between flexibility in the imposition of environmental standards and the enforcement of dispute settlements’ rulings.

The United States (US) imposed, in July 1999, a safeguard on lamb meat, in the form of tariff rate import quotas, which were to be applied for a period of three years. The measure was based on findings by the US International Trade Commission that increased imports of lamb meat were a substantial cause of threat of serious injury to the US industry producing the like product. Following complaints by New Zealand and Australia that the measure was inconsistent with Articles I, II and XIX of GATT 1994, and several provisions of the Agreement on Safeguards, the World Trade Organization (WTO) Dispute Settlement Body established, in November 1999, a panel to review the consistency of the US measure with the mentioned WTO rules.

As comprehensively argued elsewhere in this volume,1 the WTO's antidumping provisions reflect political compromises that mask an underlying lack of consensus on the value and purpose of an antidumping regime at the national level. This is an old story that has been long argued in academic and policy circles. What is noteworthy recently is the significant increase in the use of trade remedies, especially by developing economies. As a result, while the post-Uruguay Round period is generally marked by greater economic openness resulting from various forms of trade liberalization, the use of trade remedies is no longer primarily the province of OECD economies. Indeed, the introduction and use of trade remedies is proliferating around the world.2

The 21.5 AB ruling in Mexico – Corn Syrup arises out of a dispute between the United States and Mexico concerning whether the Mexican agency’s finding of material injury from dumping was consistent with the Anti-dumping Agreement. The original Panel1 found that the agency’s determination of the existence of a threat of material injury to the domestic industry was made in violation of numerous provisions of the Anti-dumping Agreement. In light of these findings by the panel, the agency made a redetermination and the United States filed a 21.5 complaint, claiming that the redetermination failed to address adequately the defects identified by the original panel.

The WTO rules on dumping and anti-dumping reflect a political bargain, negotiated in the context of a fundamental normative dissensus as to whether dumping is a “wrong” practice and why.

In the GATT, there is an apparently strong statement against dumping, which can be defined as the sale of a product in the country of importation at a lower price than in the country of exportation, or at below cost. Dumping, the GATT says, is to be “condemned.” However, this is immediately followed by the qualification “if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic injury”(Article VI.1: emphasis added).

In 1993, the US Department of Commerce began to levy countervailing duties on imports of certain leaded bars from the United Kingdom. The United States applied tariffs to goods imported from British Steel Engineering Steels, a subsidiary of British Steel plc. Following investigations by the US Department of Commerce and the United States International Trade Commission, the US authorities held that the imposition of duties was both required by Section 701 of the Tariff Act of 1930 (as amended) and not in violation of any of the country’s obligations as a member of the World Trade Organization.

This study examines the dispute brought before the World Trade Organization (WTO) concerning the United States – Measures Treating Export Restraints as Subsidies (WT/DS 194), euphemistically referred to herein as US – Export Restraints. In this dispute, Canada challenged the US treatment of export restraints under US countervailing duty law and practice. The principal legal focus was therefore on the WTO Subsidies and Countervailing Measures (SCM) Agreement. This is one of a handful of WTO cases where the complainant (Canada) was not challenging the application of a governmental measure (by the US here) but rather the WTO consistency of existing legal measures. Essentially, Canada claimed that certain US legislation along with established practice by the US Department of Commerce constitute a violation of US obligations under the SCM Agreement.

This paper summarizes and critically reviews the dispute brought before the World Trade Organization (WTO) concerning Canada – Measures Affecting the Importation of Dairy Products and the Exportation of Milk, euphemistically referred to herein as Canada – Dairy. This dispute is centered on the WTO Agricultural Agreement, though it also involves the WTO Subsidies and Countervailing Measures (SCM) Agreement and GATT – 1994.

This dispute between the European Communities and the United States originated when the United States amended its copyright law in a way that nullified and impaired certain benefits promised to the European Communities under the Agreement on Trade Related Aspects of Intellectual Property (TRIPs). Article 9.1 of TRIPs requires all WTO members to comply with Articles 1 through 21 of the Berne Convention of 1971. Among the provisions of the Berne Convention thus incorporated into the TRIPs Agreement is one that grants to authors of literary and artistic works the exclusive right to authorize “the public communication by loudspeaker or any analogous instrument transmitting, by signs, sounds or images, the broadcast of the work,” and another that grants to authors of dramatic and musical works the exclusive right to authorize “any communication to the public of the performance of these works.”1