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Wto Law C2
Wto Law C2
SEMINAR 2:
FACULTY OF INTERNATIONAL LAW INTRODUCTION TO WTO BASIC PRINCIPLES
2.4. TRANSPARENCY
SEMINAR 2
INTRODUCTION TO WTO BASIC
PRINCIPLES
1 2
Key words:
tariff, grapes, Vietnam, trade
agreements
3 4
Initial Observation Extract
2.1. MOST-FAVOURED-NATION TREATMENT (MFN)
Source: https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm
5 6
q “It suggests special treatment, but in the WTO it actually means non-
discrimination — treating virtually everyone equally.”
q “If a country improves the benefits that it gives to one trading partner, it has
to give the same “best” treatment to all the other WTO members so that
they all remain “most-favoured”.”
q It has exceptions.
(Art. I, GATT)
7 8
Initial Observation GATT Extract
Source: https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm
9 10
§ imports any like product originating in or destined for the territories of all
other WTO members?
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art1_jur.pdf
11 12
§ any advantage, favour, privilege, or immunity covered
§ like product
• border measures (tariff and non-tariff)
Identical product? Similar product?
+ customs duties and charges of any kind: imposed on or in connection with
“Throughout this Agreement [ADA or SCM] the term “like product”
importation or exportation, imposed on the international transfer of payments
(“produit similaire”) shall be interpreted to mean a product which is
for imports and exports;
identical, i.e. alike in all respects to the product under consideration, or in the
+ the method of levying such duties and charges;
absence of such a product, another product which, although not alike in all
+ all rules and formalities in connection with importation and exportation;
respects, has characteristics closely resembling those of the product under
• internal measures (fiscal and non-fiscal) consideration.”
+ laws, regulations and requirements affecting internal sale, offering for sale, (Art. 2.6, Agreement on Implementation of Article VI of the General Agreement on Tariffs and
purchase, transportation, distribution or use of any product (covered in Trade 1994 (Anti-dumping Agreement – ADA); Foonote 46 to Art 15.1, Agreement on Subsidies
and Countervailing Measures – SCM)
Article III.4).
13 14
Several supporting cases: § measures to protect public interests (Art. XX, GATT)
Japan – Taxes on Alcoholic Beverages (DS8, 10, 11): § measures to protect security interests (Art. XXI, GATT)
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds8_e.htm § trade preferences related to frontier traffic or within customs unions or free
Canada – Autos (DS139, 142): trade areas (Art. XXIV, GATT)
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds139_e.htm
US – Poultry (China) (DS392):
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds392_e.htm § trade remedies (anti-dumping and countervailing measures) (Art. VI, GATT)
15 16
Initial Observation For Interpretation of Art. I of the GATT, see WTO Analytical Index Extract Initial Observation Extract
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art1_jur.pdf
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art1_jur.pdf
17 18
Source: https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm
Source: https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm
19 20
Initial Observation Extract Initial Observation Extract
Source: https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds472sum_e.pdf
Source: http://rtais.wto.org/UI/PublicShowRTAIDCard.aspx?rtaid=146&lang=1&redi&redirect=1
21 22
q… q…
q… q…
q… q…
q… q…
q… q…
23 24
Initial Observation Extract
2.2. NATIONAL TREATMENT
Source: https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm
25 26
“The contracting parties recognize that internal taxes and other internal
§ General obligation (Art. III:1) charges, and laws, regulations and requirements affecting the internal sale,
offering for sale, purchase, transportation, distribution or use of products, and
§ Internal taxes and charges (Art. III:2)
internal quantitative regulations requiring the mixture, processing or use of
§ Internal laws, regulations and requirements (Art. III:4) products in specified amounts or proportions, should not be applied to
imported or domestic products so as to afford protection to domestic
§ Internal quantitative regulations (Art. III:5) production.”
No protectionism
(Art. III, GATT)
27 28
Initial Observation Analytical Index of the GATT Extract
Source: https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art3_e.pdf
29 30
“The products of the territory of any contracting party imported into the territory
of any other contracting party shall not be subject, directly or indirectly, to
internal taxes or other internal charges of any kind in excess of those applied,
directly or indirectly, to like domestic products. Moreover, no contracting party
shall otherwise apply internal taxes or other internal charges to imported or
domestic products in a manner contrary to the principles set forth in paragraph 1.”
Like products
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art3_jur.pdf
31 32
Initial Observation Analytical Index of the GATT Extract Initial Observation Analytical Index of the GATT Extract
Source: https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art3_e.pdf
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art3_jur.pdf
33 34
Initial Observation Analysis of NT in practice (e.g.) Extract Initial Observation Analysis of NT in practice (e.g.) Extract
Mexico — Tax Measures on Soft Drinks and Other Beverages (DS308), Panel Report Mexico — Tax Measures on Soft Drinks and Other Beverages (DS308), Panel Report
35 36
Initial Observation Art. III:2 of the GATT, WTO Analytical Index Extract
“A tax conforming to the requirements of the first sentence of paragraph 2
would be considered to be inconsistent with the provisions of the second
sentence only in cases where competition was involved between, on the one
hand, the taxed product and, on the other hand, a directly competitive or
substitutable product which was not similarly taxed.”
competition condition
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art3_jur.pdf
37 38
39 40
Initial Extract Initial Extract
Observation Observation
41 42
43 44
Initial Observation Art. III:4 of the GATT, Analytical Index of the GATT Extract
§ Internal laws, regulations and requirements
“The products of the territory of any contracting party imported into the
territory of any other contracting party shall be accorded treatment no less
favourable than that accorded to like products of national origin in respect of
all laws, regulations and requirements affecting their internal sale, offering
for sale, purchase, transportation, distribution or use. The provisions of this
paragraph shall not prevent the application of differential internal transportation
charges which are based exclusively on the economic operation of the means of
transport and not on the nationality of the product.”
Like products
45 46
Initial Observation Art. III:4 of the GATT, WTO Analytical Index Extract Initial Observation Art. III:4 of the GATT, WTO Analytical Index Extract
47 48
Initial Observation Analysis of NT in practice (e.g.) Extract Initial Extract
Observation
Mexico — Tax Measures on Soft Drinks and Other Beverages (DS308), Panel Report
Source: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/308R-00.pdf&Open=True
Source: https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds161sum_e.pdf
49 50
51 52
• Further readings: Understanding Art. III:2, GATT
Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef
(DS161): https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds161_e.htm q…
q…
China — Measures Affecting Imports of Automobile Parts (DS339):
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds339_e.htm q…
q…
United States — Certain Measures Relating to the Renewable Energy Sector
(DS510): https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds510_e.htm q…
q…
q…
q…
q…
53 54
§ Internal quantitative regulations “Regulations consistent with the provisions of the first sentence of paragraph 5
shall not be considered to be contrary to the provisions of the second sentence
“No contracting party shall establish or maintain any internal quantitative
in any case in which all of the products subject to the regulations are produced
regulation relating to the mixture, processing or use of products in
domestically in substantial quantities. A regulation cannot be justified as being
specified amounts or proportions which requires, directly or indirectly, that
consistent with the provisions of the second sentence on the ground that the
any specified amount or proportion of any product which is the subject of
proportion or amount allocated to each of the products which are the subject of
the regulation must be supplied from domestic sources. Moreover, no
the regulation constitutes an equitable relationship between imported and
contracting party shall otherwise apply internal quantitative regulations in a
domestic products.”
manner contrary to the principles set forth in paragraph 1.”
(ad Art. III:5, GATT)
55 56
Initial Observation Art. III of the GATT, Analytical Index of the GATT Extract Initial Observation Art. III of the GATT, WTO Analytical Index Extract
57 58
Initial Observation Analysis of NT in practice (e.g.) Extract Initial Observation Brazil — Certain Measures Concerning Taxation and Charges Extract
(DS472)
Brazil — Certain Measures Concerning Taxation and Charges (DS472), Panel Report
59 60
2.2.2. EXCEPTIONS TO/DEROGATIONS FROM NT
Understanding Art. III:2, GATT UNDER GATT
q…
§ historical preferences (Art. III:3, GATT)
q… § government procurement (Art. III:8a, GATT)
q… § subsidies to domestic producers (Art. III:8b, GATT)
q…
§ measures to protect public interests (Art. XX, GATT)
q… § measures to protect security interests (Art. XXI, GATT)
q… § trade preferences related to frontier traffic or within customs unions or free
trade areas (Art. XXIV, GATT)
q…
61 62
q… q…
2.3.1. General Exceptions (Art. XX, GATT)
q… q…
q… q… 2.3.2. Security Exceptions (Art. XXI, GATT)
63 64
2.3.1. General Exceptions (Art. XX, GATT)
§ Applicability conditions
“Subject to the requirement that such measures are not applied in a manner
§ Applicability conditions
which would constitute a means of arbitrary or unjustifiable discrimination
§ Objectives of Measures & Objective-Measure Relationships
between countries where the same conditions prevail, or a disguised
§ Two-tier Test
restriction on international trade, nothing in this Agreement shall be
construed to prevent the adoption or enforcement by any Member of measures:
…”
65 66
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art20_jur.pdf
67 68
§ Objectives of Measures & Objective-Measure Relationships (cont.) Initial Observation Extract
69 70
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art20_jur.pdf
q… q…
71 72
Initial Observation Art. XX of the GATT, Analytical Index Extract
§ Two-tier Test
1. Does the measure fall within one of the exceptions listed in Article XX?
covered objective?
relationship requirement?
2. If yes, is it applied in conformity with the “chapeau”?
no arbitrary discrimination?
justifiable discrimination?
no disguised restriction on trade?
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art20_jur.pdf
73 74
Source: https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds484sum_e.pdf
Source: https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds484sum_e.pdf
75 76
Initial Observation Extract Initial Observation Extract
77 78
2.3.2. Security Exceptions (Art. XXI, GATT) Article XXI: Security Exceptions, GATT
“Nothing in this Agreement shall be construed
§ Situations triggering security concerns (a) to require any contracting party to furnish any information the disclosure
of which it considers contrary to its essential security interests; or
§ Objective-measure relationships
(b) to prevent any contracting party from taking any action which it considers
§ Self-judging language: “it considers…” necessary for the protection of its essential security interests
(i) relating to fissionable materials or the materials from which they are
derived;
(ii) relating to the traffic in arms, ammunition and implements of war and
to such traffic in other goods and materials as is carried on directly or
indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its
obligations under the United Nations Charter for the maintenance of
international peace and security.”
79 80
Initial Observation Extract
2.3.3. Regional Integration (Art. XXIV, GATT)
§ Principle
§ Types
§ Conditions
Source: https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art21_e.pdf
Source: https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art21_jur.pdf
81 82
§ Principle
§ Conditions
“The contracting parties recognize the desirability of increasing freedom of trade + “Substantially all trade” among partners (internal)
by the development, through voluntary agreements, of closer integration between + Not on the whole more trade-restrictive (external)
the economies of the countries parties to such agreements. They also recognize that + Limited transition period
the purpose of a customs union or of a free-trade area should be to facilitate trade
between the constituent territories and not to raise barriers to the trade of other In order to rely on Article XXIV GATT as a defense, WTO members must
contracting parties with such territories.” (Art. XXIV:4, GATT) show that:
+ FTA/CU complies with the internal and external trade requirements
“[T]he provisions of this Agreement [GATT] shall not prevent, as between the
+ challenged measure is “necessary” to the formation of such FTA/CU
territories of contracting parties, the formation of a customs union or of a free-trade
area or the adoption of an interim agreement necessary for the formation of a
customs union or of a free-trade area”. (Art. XXIV:5, GATT)
§ Types
83 84
Initial Observation Article XXIV of the GATT, WTO Analytical Index Extract Initial Observation Extract
85 86
Key words:
tariff, grapes, Vietnam, trade
agreements
87 88
Initial Observation Extract Initial Observation Extract
89 90
§ Further readings
2.4. TRANSPARENCY
Regional trade agreements:
https://www.wto.org/english/tratop_e/region_e/region_e.htm
q“It is … fundamentally important that regulations and policies are transparent.”
qFor transparency, “governments have to inform the WTO and fellow-members
of specific measures, policies or laws through regular “notifications”.”
91 92
Initial Observation Extract
Example
q“Peer reviews” by other WTO members encourage governments to follow Trade Policy Reviews
more closely the WTO rules and disciplines and to fulfil their Vietnam
commitments.
93 94
95 96
Initial Extract Initial Extract
Observation Observation 3 TRADE POLICIES AND PRACTICES BY MEASURE (cont.)
97 98
99 100
• Further reading TAKE-HOME MESSAGE
Trade policy reviews: ensuring transparency:
https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm11_e.htm
101 102