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12383 results in International Trade Law

Page 604 of 620

  • 20 - Should the teeth be pulled? An analysis of WTO sanctions

  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 602-635

  • Summary

    The most salient feature of the World Trade Organization (WTO) dispute settlement system is the possibility of authorizing a trade sanction against a scofflaw member government. Yet this feature is a mixed blessing. On the one hand, it fortifies WTO rules and promotes respect for them. On the other hand, it undermines the principle of free trade and provokes “sanction-envy” in other international organizations. Undoubtedly, the implanting of “teeth” by the WTO negotiators was one of the key achievements of the Uruguay Round, and a very significant step in the evolution of international economic law. But after six years of experience, WTO observers are beginning to consider whether recourse to damaging trade measures was a good idea. This essay provides an analytical framework for rethinking WTO trade sanctions.

    To be sure, the WTO Agreement does not employ the word “sanction.” What the Dispute Settlement Understanding (DSU) of 1994 says in Article 22 is that if a government fails to bring a measure found to be inconsistent with a WTO rule into compliance, it shall enter into negotiations with the government invoking dispute settlement, and if no mutually acceptable compensation is agreed, the plaintiff government may seek authorization from the WTO Dispute Settlement Body (DSB) “to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.” This language is based on a similar provision in the General Agreement on Tariffs and Trade (GATT) of 1947.

  • 7 - International action on bribery and corruption: Why the dog didn't bark in the WTO

  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 177-204

  • Summary

    Introduction

    Throughout his scholarly career, Robert Hudec has made many important contributions to our understanding of international trade law. Yet none has been so important as his explication of the essential differences between “law” and “legal institutions” in the international trade system and their domestic counterparts. “International trade law” is a distinct institutional form adapted to the particular political context in which it has developed and is applied. Thus, in this volume we are enjoined to explore the political economy of international trade law: how national and international politics are intertwined with economic considerations in this unique set of institutions. We take that line of analysis one step further here by considering the relative effectiveness of alternative institutional arrangements in dealing with the politics of emerging issues on the international trade agenda.

    A major premise of this paper is that one can learn much about the World Trade Organization (WTO) as a legal and political institution by considering the deeply political decision-making processes that determine which issues it will address and in what form it will address them. In other words, we focus here on the “legislative” side of the international trade system, which has received much less attention than the “judicial” side. We do so in terms of an expansive conception of international legalization – spanning the range from “soft” to “hard” law – which allows us to treat both political and legal factors.

  • Introduction: An overview of the volume

  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 1-10

  • Summary

    This is a book about current problems affecting the law and institutions of the World Trade Organization (WTO). The particular problems treated in this book have recently risen to particular prominence due to the WTO's decision, at its November 2001 Ministerial Meeting in Doha, Qatar, to launch a new round of trade negotiations. The need to deal with these issues was a key reason for launching the new negotiations, while the problems themselves, if not resolved, will stand as obstacles to the success of those negotiations.

    In recognition of Professor Robert E. Hudec's scholarly contributions to international trade law, participants at the conference in his honor were invited to employ, in their treatment of the WTO problems they had chosen to discuss, a particular analytical approach for which Hudec's scholarship is known. Known to conference participants as “Transcending the Ostensible,” the approach directs particular attention to the possibility that WTO legal institutions, like other international legal institutions, will function in unexpected ways due to the political and economic conditions of the international environment in which they have been created, and in which they operate. Like all international legal institutions, WTO legal institutions are designed to affect the behavior of governments, rather than private persons and institutions. Government behavior is determined by the domestic political forces engaged on the issue in question.

  • 12 - “If only we were elephants”: The political economy of the WTO's treatment of trade and environment matters

  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 349-393

  • Summary

    Mainstream US environmental groups were a core part of the protests at the 1999 World Trade Organization (WTO) Ministerial meeting in Seattle, having taken the lead throughout the 1990s in challenging the legitimacy of WTO decision-making. Their central claim is that WTO decisions on trade and environment issues are anti-democratic and thus lack legitimacy. This study takes their charges seriously, assessing the representativeness of those partaking in WTO negotiations to define a legal framework for addressing the interaction of trade and environmental policies. The basic question is who is represented and how are they represented in determining law's contours through the political process at the international level.

    This study examines how the World Trade Organization has addressed trade and environment issues through the creation of a Committee on Trade and Environment (CTE), treating the CTE as a site to assess central concerns of governance – that is, who governs – in a globalizing economy. Northern environmental interest groups and many Northern academics criticize the Committee on Trade and Environment for failing to propose substantive changes to WTO law in order to grant more deference to national environmental policies. This essay, through its focus on the positions and roles of state and non-state actors, provides a better foundation to assess the democratic accountability of the WTO's handling of trade-environment matters.

  • 1 - Sovereignty, subsidiarity, and separation of powers: The high-wire balancing act of globalization

  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 13-31

  • Summary

    Introduction

    I am delighted and honored to be able to participate in this volume, assembled to express appreciation of the lifetime achievements of Professor Robert Hudec. Bob and I have been friends and professional collaborators and protagonists for so many decades now that I do not want to explain it in too great detail. However, there is no question that his enormous output of research, writing, and thinking has made a substantial contribution to world order and to the burgeoning new subject of international economic law. I hope my tentative writing in this manuscript will do honor to Professor Hudec's accomplishments.

    The overall theme of this volume is “Transcending the Ostensible,” and clearly the core subject of the book relates to the international economic system, particularly the trading system and related subjects. From the point of view of international economic law, therefore, the terrain is extraordinarily broad. What I plan to do here is to focus on a subject that is even broader, that has enormous implications for international economic law, but also other parts of international law, and, in doing so, I will try to relate that subject to the current problems of the World Trade Organization (WTO).

    Although it may not be completely obvious, my topic of “Sovereignty, subsidiarity, and separation of powers: the high wire balancing act of globalization” is in many ways at the center of a great deal of the current trade system diplomacy and jurisprudence development.

The Political Economy of International Trade Law
  • Essays in Honor of Robert E. Hudec
  • Edited by Daniel L. M. Kennedy, James D. Southwick
  • Published online:
    02 September 2009
    Print publication:
    23 May 2002
  • International experts from law, economics and political science provide in-depth analysis of international trade issues. Attorneys, economists and political scientists adopt a common viewpoint, entitled 'transcending the ostensible'. This approach directs particular attention to the possibility that WTO legal institutions, like other international legal institutions, will function in unexpected ways due to the political and economic conditions of the international environment in which they have been created, and in which they operate. A range of trade problems are considered here. Topics include the constitutional dimensions of international trade law, adding subjects and restructuring existing subjects to international trade law, the legal relations between developed and developing countries, and the operation of the WTO dispute settlement procedure. This will be an essential volume for professionals and academics involved with international trade policy.

  • 16 - The Appellate Body and its contribution to WTO dispute settlement

  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 482-495

  • Summary

    It has been five years since the Appellate Body was established in 1995. On this anniversary, it is time to reflect on the development of the Appellate Body as part of the institutional structure of the World Trade Organization (WTO). I will leave it to others to comment on whether the first five years' experience with the Appellate Body has been positive or negative for the WTO, in general, and dispute settlement, in particular. I will attempt, instead, to provide a history of the evolution of the Appellate Body as a standing, “quasi-judicial” international tribunal, while reflecting on its contributions to WTO law.

    This book is a tribute to the life and work of Professor Robert Hudec, who has been a leading light and educator on the history of the General Agreement on Tariffs and Trade (GATT) and the dispute settlement system, in particular. We all owe a tremendous debt to Professor Hudec for his meticulous, comprehensive, and prolific research on the GATT/WTO dispute settlement system, as well as for his brilliant and inspiring ideas on GATT/WTO law and policy. A few important messages from Bob's writings on GATT dispute settlement, in particular, stick out in my mind. First, Bob has always maintained that an incrementalist, evolutionary approach to the development of the dispute settlement system in the GATT, and now in the WTO, is preferable to a negotiated approach.

  • 2 - Constitutionalism and WTO law: From a state-centered approach towards a human rights approach in international economic law

    • By Ernst-Ulrich Petersmann, Professor of Law, University of Geneva; Chairman, International Trade Law Committee of the International Law Association
  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 32-67

  • Summary

    “Transcending the ostensible”: constitutional democracy and World Trade Law

    The General Agreement on Tariffs and Trade (GATT) was negotiated as an agreement about rights and obligations of states and of other “customs territories” in 1947, i.e., at a time when human rights were not yet recognized as part of general international law. Today, more than fifty years later, human rights have become recognized by virtually all 189 United Nations (UN) member states as part of general international law and, in part, of international ius cogens. This “human rights revolution” and the customary rules of international treaty interpretation (as reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties) require interpretation of the 1994 Agreement establishing the World Trade Organization (WTO) with due regard to “any relevant rules of international law applicable in the relations between the parties” (Article 31:3(c) Vienna Convention), including universally recognized human rights. What are the legal consequences of this “paradigm change” from a state-centered approach towards a human rights approach in international law for the interpretation and progressive development of WTO law? Does it matter, for instance, for the interpretation of the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) that UN human rights instruments recognize intellectual property and the right of everyone to benefit from the protection of intellectual property as human rights?

  • 14 - Developing country interests in WTO agricultural policy

    • By G. Edward Schuh, Professor of International Economic Policy, University of Minnesota and Orville; Professor of International Trade and Investment Policy Humphrey Institute of Public Affairs, University of Minnesota
  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 435-449

  • Summary

    This essay discusses the interests of developing countries in World Trade Organization (WTO) agricultural policies. Kym Anderson (1999) recently noted that “The potential gains from further liberalizing agricultural markets are huge, both absolutely and relative to gains from liberalizing textiles or other manufacturing, according to recent GTAP modeling results.” That should not surprise us, since, as will be noted below, much of the world's agricultural output is produced in the wrong places. Anderson goes on to note that “The prospective new millennium round offers the best opportunity yet for developing countries to be pro-active in seeking faster reform of farm (and textile) trade by OECD countries. In return, the developing countries will need to offer to open their own economies more. Fortuitously, that too is in the economic interests of rural people in poor countries.”

    My essay is divided into four parts. First, I will provide the background on events that have led to our present situation. I will of necessity paint with a broad brush in doing this, but the background is important to indicate why we are where we are, and to understand some of the issues that will have to be overcome to move forward. Second, I will discuss a couple of conundrums in international trade negotiations that continue to be a puzzle. Third, I will discuss some of the specific issues on the current international trade agenda that need to be addressed if we are to make more efficient use of the world's agricultural resources and to address the serious problems of poverty in the developing countries.

  • 8 - Alternative national merger standards and the prospects for international cooperation

    • By Daniel J. Gifford, Professor of Law, University of Minnesota Law School, Robert T. Kudrle, Professor of Public Affairs and Law Humphrey Institute of Public Affairs, University of Minnesota
  • Edited by Daniel L. M. Kennedy, University of Minnesota, James D. Southwick, University of Minnesota
  • Book:
    The Political Economy of International Trade Law
    Published online:
    02 September 2009
    Print publication:
    23 May 2002, pp 208-247

  • Summary

    The rapidly integrating world economy has generated calls for more cooperation in the area that Americans call “antitrust” and most of the rest of world terms “competition policy.” This surge of interest grew from several concerns. One strong impetus came from the failure of foreign firms to penetrate some domestic markets, despite the dramatic reduction in nominal barriers to trade and investment. Japan was the target of much of this criticism, and many complained of private collusion unchecked by effective public policy. A second impetus came from the determination of many scholars and policy makers to integrate trade and competition policy more closely in the reduction of “administered protection” directed against foreign firms who faced legal harassment to sales in domestic markets based on bogus economic argument and evidence. Both of these problems appear more likely to be solved through international pressure and agreement than through uncoordinated changes in public policy. Finally, there are growing issues more clearly attributable to the size and scope of international business. The quality and price of products sold in one market have come increasingly to depend on private action and competition policy pursued in other states.

    This paper considers one important subset of this third group of concerns: merger and acquisition policy. States may be greatly affected by merger policies elsewhere even if the firms involved have no production facilities in the affected state. Some jurisdictions have responded by claiming a voice in the approval or rejection of mergers in other jurisdictions.

  • Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products (WT/DS103): Report of the Panel

  • Edited by World Trade Organization
  • Book:
    Dispute Settlement Reports 1999
    Published online:
    22 December 2017
    Print publication:
    11 April 2002, pp 2097-2344

  • Summary

    INTRODUCTION

    This proceeding has been initiated by two complaining parties, the United States and New Zealand.

    In a communication dated 8 October 1997 (WT/DS103/1), the United States requested consultations with Canada in accordance with Article 4 of the Under- standing on Rules and Procedures Governing the Settlement of Disputes (“DSU”), pursuant to Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”), Article 19 of the Agreement on Agriculture, Article 30 of the Agreement on Subsidies and Countervailing Duties (“the SCM Agreement”) and Article 6 of the Agreement on Import Licensing Procedures with respect to export subsidies of Canada on dairy products and the administration by Canada of its tariff- rate quota for fluid milk and cream. The United States and Canada held consultations in Geneva on 19 November 1997 but these consultations did not result in a resolution of the dispute.

    On 29 December 1997 New Zealand requested consultations with Canada pursuant to Article 4 of the DSU, under Article 19 of the Agreement on Agriculture and Article XXII:1 of the GATT 1994 with regard to Canada's Special Milk Classes Scheme. New Zealand and Canada held consultations on 28 January 1998 but these consultations did not result in a resolution of the dispute.

    On 2 February 1998, the United States (WT/DS103/4) and on 12 March 1998, New Zealand (WT/DS113/4), each requested the establishment of a panel with standard terms of reference.

    In its request, the United States claims that:

  • (a) “The Government of Canada is providing subsidies, and in particular export subsidies, on dairy products through its national and provincial pricing arrangements for milk and other dairy products without regard to the export subsidy reduction and other WTO commitments under- taken by Canada. Specifically, the Government of Canada established and maintains a system of special milk classes through which it maintains high domestic prices, promotes import substitution, and provides export subsidies for dairy products going into world markets. These practices distort markets for dairy products and adversely affect US sales of dairy products.”

  • (b) “In addition, although Canada committed under the Marrakesh Agreement Establishing the World Trade Organization to permit access to an in-quota quantity of 64,500 tonnes (product weight basis) under a tariff-rate quota for imports of fluid milk and cream, Canada has refused to permit commercial import shipments within the quota.

Page 604 of 620