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12383 results in International Trade Law

Page 253 of 620

Dispute Settlement Reports 2014
  • Volume 8, Pages 3025–3496
  • Corporate Author World Trade Organization
  • Published online:
    12 December 2017
    Print publication:
    07 April 2016
  • The Dispute Settlement Reports of the World Trade Organization (WTO) include Panel and Appellate Body reports, as well as arbitration awards, in disputes concerning the rights and obligations of WTO members under the provisions of the Marrakesh Agreement Establishing the World Trade Organization. These are the WTO authorized and paginated reports in English. An essential addition to the library of all practising and academic trade lawyers and needed by students worldwide taking courses in international economic or trade law. DSR 2014: Volume 8 reports on United States - Countervailing and Anti-Dumping Measures on Certain Products from China (WT/DS449).

  • 10 - Mediation

  • from PART III - Extensions and variants
  • Ho-Won Jeong, George Mason University, Virginia
  • Book:
    International Negotiation
    Published online:
    30 January 2019
    Print publication:
    07 April 2016, pp 199-218

  • Summary

    One of the best ways to persuade others is with your ears – by listening to them.

    Dean Rusk

    MEDIATION is largely known as an assisted or managed form of negotiation. A negotiating process can be modified or extended by the interference of a third party whose primary interest lies in facilitating an agreement. Intermediary participation is designed to create dynamics necessary to overcome or remove obstacles in the structure of interaction. It would improve efficiency in a situation in which a reluctance to expose preferences produces Pareto inferior solutions. When direct negotiations face stalemate, mediation can be introduced to bring about a settlement that could not otherwise have been achievable – such incidents include peace accords in ending brutal civil wars and other protracted violent conflicts (e.g., Burundi, Sudan, Bosnia-Herzegovina, Northern Ireland, etc. in the mid 1990s and early 2000s) as well as long-simmering interstate conflicts (e.g., the 1978 Camp David Peace Accord between Egypt and Israel; the settlement of territorial disputes between Argentina and Chile in 1984).

    A mediator has diverse degrees of interest in the conflict and its outcome, but is, in general, endowed with an ability to shape both the context and substance of negotiation through process control, although a final decision on acceptance or rejection of the outcome is left with disputants. This chapter reviews various roles of mediators in controlling negotiators’ interactions and, by doing so, the outcome as well. It examines change in bargaining dynamics through assistance in communication, along with restructuring the agendas and drafting proposals. Our main focus will be on the way changes in the number of parties as well as the control of information flows bring about structural alterations in direct interactions between negotiators. As interference in communication channels forms the core of the mediation dynamics, we will also investigate its impact on strategic games played by both a mediator and disputants.

    Intermediary functions

    Missed opportunities for agreement might be ascribed to communication links fraught with misunderstanding and misperception. The supply of alternative and additional information would be effective in overcoming cognitive limitations such as discounting an opponent's conciliatory moves, reduction in each disputant's fear, prejudices and stereotypes. By keeping the communication flow balanced and productive, negotiation becomes viable in situations where there would otherwise be an impasse.

  • 7 - Negotiation process and activities

  • from Part II - Negotiation process, behavior and context
  • Ho-Won Jeong, George Mason University, Virginia
  • Book:
    International Negotiation
    Published online:
    30 January 2019
    Print publication:
    07 April 2016, pp 126-151

  • Summary

    Unless both sides win, no agreement can be permanent.

    Jimmy Carter, 2002

    AS PROGRESS may not necessarily be linear, the potential for negotiations evolves along vastly different trajectories. Nonetheless, the participants should have an overall, even if vague, notion of how the process is likely to proceed. The whole sequence of negotiations can be envisaged as a developmental process of testing the ground, agenda formulation, proposal making, bargaining and closure. In illuminating the main characteristics of different negotiation stages, this chapter looks at specific negotiating activities that encompass proposal exchange, issue redefinition and conceptualization, exploration of an overall structure of the deal, and a search for implementing details.

    The nature of the dispute is initially defined through issue clarification at the agenda phase. Once having voiced a commitment to key issues, each side has to turn their attention to narrowing the differences before any prospect for settlement emerges. This transition serves as a preliminary to final bargaining. More specifically, these preliminaries constitute a search for a viable range of alternative settlements through a serious study of trading possibilities, and honing a bargaining formula. Jostling for position may precede the eventual ironing out of differences. The points of difference may be narrowed by concession-making. Thus a shared sense of the approximate range of possible terms is essential to deal structuring and detailed bargaining. As vividly illustrated, for instance, in Greek debt talks with Eurozone countries and the US–Iranian nuclear deal-making attempt in 2015, the whole process does not stop at the conclusion of an agreement, spilling over into implementation, demanding either associated negotiation or renegotiation for new or improved terms.

    Prenegotiation stage

    As part of prenegotiation dynamics, each side measures the other's capabilities and desires. Then the first step is a decision as to whether or not to negotiate at all. In general, each party should feel compelled to see the need for negotiation; it can be created by various events and other circumstances. The example of Panama's negotiation with the United States below demonstrates how a weaker party can take advantage of a catalytic event to force a much stronger party to see the need to redress their grievances.

  • 6 - Rules regarding harmonization of national regulation

  • Peter Van den Bossche, WTO Appellate Body, Geneva, Denise Prévost
  • Book:
    Essentials of WTO Law
    Published online:
    11 September 2021
    Print publication:
    02 April 2016, pp 178-231

  • Summary

    Introduction

    As customs duties and quotas decrease in importance as barriers to trade in goods, regulatory barriers to trade gain steadily in significance. Technical regulations and standards, as well as sanitary and phytosanitary measures, can pose significant obstacles to trade and may be misused to protect domestic products against competition from imported products. The TBT Agreement and the SPS Agreement aim to prevent such misuse and to minimize the trade-restrictive impact of legitimate regulation. Also, the lack of protection of intellectual property (IP) rights negatively affects trade in goods and services. Therefore, the TRIPS Agreement aims to ensure that the relevant regulations of WTO Members provide a minimum level of effective protection of IP rights.

    The three WTO agreements mentioned here, the TBT Agreement, the SPS Agreement and the TRIPS Agreement, have an important aspect in common. Their obligations regarding national regulation go beyond the general rules of the GATT 1994 applicable to non-tariff barriers to trade, which address such measures primarily by prohibiting them (as is the case for quantitative restrictions; see Section 3.4) or by requiring their non-discriminatory application (as is the case for internal taxes and regulations; see Sections 2.2 and 2.4). The TBT Agreement, the SPS Agreement, and the TRIPS Agreement go further than this and promote the harmonization of national regulation on the basis of international standards or rules.

    The TBT Agreement

    WTO Members have many regulatory requirements in place regarding products that are traded in their territories; for instance, on the composition, quality, safety, production process, packaging and labelling of these products. Such requirements are commonly aimed at achieving legitimate public policy objectives, such as the protection of public health, the environment, consumers or public morals. However, because these regulatory requirements often differ from country to country, and products not meeting the specific requirements of the domestic market are banned, they may constitute formidable barriers to trade. They are also vulnerable to misuse for protectionist purposes. The TBT Agreement imposes disciplines on these technical requirements.

    Scope of application

    The TBT Agreement applies to:

  • • technical regulations;

  • • standards; and

  • • conformity assessment procedures.

  • 5 - Rules on unfair trade

  • Peter Van den Bossche, WTO Appellate Body, Geneva, Denise Prévost
  • Book:
    Essentials of WTO Law
    Published online:
    11 September 2021
    Print publication:
    02 April 2016, pp 141-177

  • Summary

    Introduction

    WTO law provides for detailed rules with respect to dumping and subsidization – two specific trade practices commonly considered to be unfair. The following sections will briefly examine the WTO rules concerning these unfair trade practices.

    Rules on dumping

    The WTO rules on dumping are contained in Article VI of the GATT 1994 and in the Anti-Dumping Agreement.

    ‘Dumping’ is defined in Article 2.1 of the Anti-Dumping Agreement as bringing a product onto the market of another country at a price less than the ‘normal value’ of that product.

    WTO law does not prohibit dumping. Since prices of products are usually set by private companies, not by governments, WTO law does not regulate dumping itself. Instead, it governs the actions of WTO Members in response to dumping. WTO Members are allowed to take measures to protect their domestic industry from the injurious effects of dumping. Pursuant to Article VI of the GATT 1994 and the Anti-Dumping Agreement, WTO Members are entitled to impose anti-dumping measures if three substantive conditions are met:

  • • there is dumping;

  • • the domestic industry producing the like product in the importing country is suffering material injury (or there is a threat of such material injury); and

  • • there is a causal link between the dumping and the injury.

    • These requirements have been worked out in detail in Articles 2 to 4 of the Anti-Dumping Agreement. The Anti-Dumping Agreement further provides rules concerning anti-dumping investigations and the imposition and collection of anti-dumping duties.

    WTO Members have frequent recourse to anti-dumping measures, and these measures are regularly the subject of trade disputes between WTO Members.

    More than three thousand anti-dumping measures have been imposed by WTO Members since the establishment of the WTO. Between 1 January 1995 and 31 December 2014, the most frequent user of anti-dumping measures was India (534 measures), followed at a distance by the United States (345 measures), the European Union (298 measures) and Argentina (228 measures). This makes clear that the days when anti-dumping measures were almost exclusively used by developed-country Members are over. China has been by far the biggest target of anti-dumping measures (759 measures), followed by Korea (213 measures), Chinese Taipei (173 measures) and the United States (162 measures).

  • Preface

  • Peter Van den Bossche, WTO Appellate Body, Geneva, Denise Prévost
  • Book:
    Essentials of WTO Law
    Published online:
    11 September 2021
    Print publication:
    02 April 2016, pp ix-x

  • Summary

    This book was motivated by the need for an accessible text providing a brief overview of the law of the WTO, which we both encountered in our own teaching and were alerted to by colleagues. As WTO law continues to gain in importance, its role in curricula is no longer limited to graduate programmes at law faculties. Instead, the study of WTO law is increasingly an integral part of graduate programmes at other faculties, undergraduate law programmes, summer schools and training programmes for government officials and other professionals. While teachers and students of graduate courses on WTO law have a choice of many excellent textbooks, providing a detailed examination of this increasingly complex area of law, the specific needs of teachers and students of undergraduate courses and courses outside the law faculty are less well served.

    This book aims to fill this gap by providing a succinct introduction to the main aspects of WTO law. It provides a systematic, carefully considered discussion of the legal framework, incorporating key clarifications from the case law, that is sufficient to give the reader a strong foundation in the main aspects of WTO law. For a detailed discussion of WTO law, we refer the reader to Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization, 3rd edition (Cambridge University Press, 2013).

    We have drawn on many years of experience in teaching WTO law to a wide variety of audiences to write a text that aims both to stimulate the interest of students in the field of WTO law and to facilitate their learning process. To this end, this book includes fictional illustrative examples where useful to clarify key concepts and important issues and show their practical application. Recommendations for further reading complement the text and enable students to gain a more in-depth understanding of current debates and critical analysis of the issues discussed in the book. An online resources section provides students with the tools they need to work within this field.

    This book reflects the current state of WTO law (as of 1 December 2015). Although we mention legal issues still to be adjudicated, we do not express in this book any opinion on how these issues should be decided or, more broadly, how WTO law should develop in the future.

  • 2 - Rules on non-discrimination

  • Peter Van den Bossche, WTO Appellate Body, Geneva, Denise Prévost
  • Book:
    Essentials of WTO Law
    Published online:
    11 September 2021
    Print publication:
    02 April 2016, pp 13-48

  • Summary

    Prohibition of discrimination

    The prohibition of discrimination is a key concept in WTO law and is often the subject of trade disputes between WTO Members. This prohibition finds expression in two obligations:

  • • the most-favoured-nation (MFN) treatment obligation; and

  • • the national treatment obligation.

    • In simple terms, the MFN treatment obligation prohibits discrimination among goods, services or service suppliers of different foreign origins (or with different foreign destinations).

    The MFN treatment obligation entails that Agricola, a WTO Member, may not grant more favourable treatment to smartphones from Industria than to smartphones from Alpinia, or treat Alpinian doctors less favourably than Industrian doctors.

    The national treatment obligation prohibits discrimination between foreign goods, services and service suppliers and domestic goods, services and service suppliers.

    Under the national treatment obligation, WTO Member Agricola may not treat chocolate from Industria less favourably than it treats its domestic chocolate, once the chocolate from Industria has entered the Agricolan market. Neither may Agricola treat Industrian coffeehouses established in Agricola less favourably than Agricolan coffeehouses.

    The most important non-discrimination rules in the WTO Agreement are:

  • • Article I of the GATT 1994 (MFN treatment obligation for trade in goods);

  • • Article III of the GATT 1994 (national treatment obligation for trade in goods);

  • • Article II of the GATS (MFN treatment obligation for trade in services); and

  • • Article XVII of the GATS (national treatment obligation for trade in services).

    • The WTO Agreement also contains other non-discrimination provisions, such as Articles 3 and 4 of the TRIPS Agreement concerning the MFN treatment obligation and national treatment obligation for the protection of intellectual property rights. These provisions will not be discussed further in this short overview of the prohibition on discrimination in WTO law.

    The MFN treatment obligation concerning trade in goods

    Article I:1 of the GATT 1994 contains the MFN treatment obligation concerning trade in goods. The principal purpose of the MFN treatment obligation of this Article is to ensure all WTO Members equality of opportunity to export to or import from other WTO Members.

    In EC – Seal Products (2014), the Appellate Body ruled that Article I is ‘concerned, fundamentally, with prohibiting discriminatory measures by requiring …

  • 7 - The institutional aspects of the WTO

  • Peter Van den Bossche, WTO Appellate Body, Geneva, Denise Prévost
  • Book:
    Essentials of WTO Law
    Published online:
    11 September 2021
    Print publication:
    02 April 2016, pp 232-258

  • Summary

    Introduction

    The World Trade Organization (WTO) was established under the WTO Agreement and became operational on 1 January 1995. The WTO Agreement was signed on 15 April 1994 in Marrakesh, Morocco, by the countries and customs territories that had participated in the Uruguay Round of multilateral trade negotiations (hereinafter the Uruguay Round) from 1986 to 1993. The establishment of the WTO is seen by many as the most important result of the Uruguay Round. Although the WTO is the youngest of the major international intergovernmental organizations, it is arguably among the most influential international organizations in these times of economic globalization.

    The origins of the WTO lie in the General Agreement on Tariffs and Trade of 1947 (GATT 1947), which had functioned for almost fifty years as a de facto international organization for trade. At the end of the 1940s, the international community had not succeeded in establishing an international organization for trade alongside the newly created international economic organizations, namely the World Bank and the International Monetary Fund (IMF). Although the Havana Charter establishing an ‘International Trade Organization’ was concluded in 1948, it never came into force because of the refusal of the US Congress to approve this agreement. The GATT 1947, which was conceived as a multilateral agreement for the reduction of tariffs and other barriers to trade, and not as an international organization, gradually and very pragmatically, took on the central tasks of the ‘stillborn’ International Trade Organization. The decisions, procedures and customary practices of the GATT 1947 still guide the WTO (Article XVI:1 of the WTO Agreement).

    The GATT 1947 had much success with regard to the reduction of customs duties, particularly on industrial products. However, it was less successful in reducing non-tariff barriers to trade. During the Uruguay Round, the conviction gradually grew that the international community needed a fully fledged international organization to efficiently guide and regulate the increasingly complex trade relations between countries. This conviction, championed by Canada, the European Union (EU), and Mexico but not by the United States, finally led to the establishment of the WTO.

    Objectives

    Pursuant to the Preamble of the WTO Agreement, the ultimate objectives of the WTO are:

  • • the increase of standards of living;

  • • the attainment of full employment;

  • • the growth of real income and effective demand; and

  • 8 - The WTO dispute settlement system

  • Peter Van den Bossche, WTO Appellate Body, Geneva, Denise Prévost
  • Book:
    Essentials of WTO Law
    Published online:
    11 September 2021
    Print publication:
    02 April 2016, pp 259-295

  • Summary

    Introduction

    The WTO possesses a system for the settlement of disputes between its Members that is in many respects unique and quite successful. This system is provided for in the WTO Dispute Settlement Understanding (DSU). It creates a single, integrated system for the resolution of disputes arising under any of the WTO ‘covered agreements’.

    The WTO dispute settlement system is the most prolific international State-to-State dispute settlement system. From the WTO's establishment in 1995 to date (i.e. 1 December 2015), 500 disputes have been brought to the WTO dispute settlement system, and 194 panel reports and 120 Appellate Body reports have been adopted. Although many of these disputes are of a technical nature, others are politically sensitive and have received extensive media attention.

    Disputes that have received much attention from the media include those involving domestic health or environmental legislation: among others, EC – Approval and Marketing of Biotech Products (2006), a dispute on the European approval regime for biotech products; Brazil – Retreaded Tyres (2007), a dispute on Brazilian measures to reduce risks arising from the accumulation of waste tyres; EC – Hormones (1998), a dispute on the European ban on meat from cattle treated with growth hormones; US – Shrimp (1998), a dispute on the US ban on shrimp caught in nets that lead to incidental killing of sea turtles; US – Tuna II (Mexico) (2012), a dispute concerning US requirements for the use of its ‘dolphin-safe’ label on tinned tuna; US – Clove Cigarettes (2012), a dispute on the US ban on flavoured cigarettes, except menthol cigarettes; and the China – Raw Materials (2012) and China – Rare Earths (2014) disputes regarding China's export restrictions on natural resources essential in the production of high-technology products. In addition, the EC and Certain Member States – Large Civil Aircraft (2011) and US – Large Civil Aircraft (2012) disputes, dealing with many billions of euros and dollars of European and American subsidies to Airbus and Boeing, respectively, have been economically very significant and of high political sensitivity.

  • 1 - International trade and the law of the WTO

  • Peter Van den Bossche, WTO Appellate Body, Geneva, Denise Prévost
  • Book:
    Essentials of WTO Law
    Published online:
    11 September 2021
    Print publication:
    02 April 2016, pp 1-12

  • Summary

    The need for international rules on international trade

    The economic prosperity of many countries largely depends on international trade. In the period 2012–2014, for example, 81 per cent of the gross domestic product (GDP) of Zambia, 63 per cent of the GDP of South Africa and 46 per cent of the GDP of Indonesia depended on international trade in goods. The increasing prosperity of China and India is without doubt largely the result of the explosive increase in their exports. There is broad consensus among economists and policy-makers that economic globalization, in general, and international trade, in particular, offer an unprecedented opportunity to stimulate economic development and significantly reduce poverty worldwide.

    As UN Secretary General Ban Ki-moon said at the 2014 WTO Public Forum on Why Trade Matters to Everyone:

    The question is not whether trade matters, but how we can make trade a better driver of equitable, sustainable development. How can we make trade the foundation of a life of dignity for all?… International trade is an essential component of an integrated effort to end poverty, ensure food security and promote economic growth. An ounce of trade can be worth a pound of aid … Trade can – and should – benefit everyone. That is why the international community needs to avoid protectionism … If managed well, international trade can be a key driver of sustainable development.

    However, to ensure that this potential is realized, international trade has to be managed and regulated at the international level. If not, economic globalization and international trade are likely to aggravate economic inequality, social injustice, environmental degradation and cultural homogenization instead of improving the current situation.

    Developed as well as developing countries need international rules on trade in order to:

  • • prevent trade-restrictive measures in situations where they are neither necessary nor desirable yet are imposed due to pressure from well-organized interest groups;

  • • give security and predictability to traders with regard to the national rules that apply to international trade in their products or services;

  • • ensure that important societal values and interests, such as public health, the environment, consumer safety, minimum labour standards, economic development and public morals, can be adequately protected and promoted; and

  • • ensure a greater measure of equity in international economic relations by providing disciplines that bind economically powerful and economically weaker countries alike,

Page 253 of 620