INTERNATIONAL TRADE LAW AND POLICY.

Ángela Yanguas Luque

SESSION 10
IMF principle

The Brazil-Retreaded https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds332sum_

Tyres Case e.pdf

Steps – Brazil-Retreaded
1. Violation: Article XI:1 GATT. (Article XI*: General Elimination of Quantitative Restrictions)
2. Justification: Article XX:b
​(b) necessary to protect human, animal or plant life or health;
3. Necessity test: for the protection of human health
a. Does this measure contribute to the protection of human health? YES, we can also take into
consideration future impacts (tires not correctly.
b. Less restrictive policy → The appellate body said that you have to look to Brazil at this point.
There are, but any alternative would lead to technical difficulties, therefore, not feasible.
4. Chapeau
a. No discrimination, no nasty things going on, consistency of the measure.
b. European Communities demonstrated, that MERCOSUR countries had more advantages
than the others.
c. Not even between he MERCOSUR countries was homogeneous. → Therefore, more an
arbitrary cooperation

NECESSITY TEST = PROPORTIONALITY TEST (EU law)

EC – Asbestos https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds135sum_
e.pdf

Steps

Precise and concrete.

1. Violation Art:III → NT
2. Like products → NOT even like product, no need to go further

EU CBAM

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 INTERNATIONAL TRADE LAW AND POLICY. Ángela Yanguas Luque

SESSION 11
National Security

Justiciability Once you use national security.

- It's not up to the court to decide if it is correct or not to invoke national
security
- Self-judging (US we should judge ourselves what is or is not national
security)

Russia - Traffic in Transit case

DS512: Russia — Measures Concerning Traffic in Transit

Invoking national security by Russia, is a way of admitting that there was an open conflict (war) with Ukraine.
- Art.XXI:b:iii → accepted national security, since there was “taken in a time of war or other emergency
in international relations”

Good faith

DS552: United States — Certain Measures on Steel and Aluminium Products

● Recreate the connection to war

● GATT litigation

Distant connection in National Security is not a good argument

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 INTERNATIONAL TRADE LAW AND POLICY. Ángela Yanguas Luque

SESSION 12
The TBT and SPS agreement

Going beyond Non discrimination is the standard→ in Article III GATT

discrimination
What do these two agreements ask for? (the idea)
● Prevent countries for creating measures, to have an efficient way of
trading, in an Harmonization way

TBT and SPS harmonization:

● Where does this harmonization come from:
● They are Lex Specialis
○ Is the type of rule that comes within the ambit of one of them.
○ Some parts might go under the GATT, others under the TBT to
the SPS.

SPS Agreement The WTO’s SPS Agreement

People, animal and plant life.

The RATIONALE: 1995

- The more sophisticated the system, the more difficult it is to defend fair
competition.
- Therefore, There are created some other agreements to push a bit
further the requirements asked to the Countries of the WTO

Article 2 and Article 5 of the SPS

A three-tier test to find a violation under the SPS agreement

1. The measure discriminate between members
2. Discrimination is arbitrary or unjustifiable
3. Identical or similar conditions prevail in the territory of the members
concerned (justify discrimination in differences of the country of coming
of the products)

International standards In both agreements, if there is a International Standard, the countries are
strongly recommended to use them and adopt them, and therefore is a way of
compliance with the WTO
- The countries are not obliged to adopt that international standards, if
they go beyond those standards they will have to justify the why.

EC-Hormone Beef case There is actually a scientific reason to block imports.

The EU was not able to justify the import ban with the scientific assessment.
Because of the risk assessment. Not a serious enough study. Therefore, they
lost the

SPS 5.7 → 15 months (up to the arbitration measure)

- Both the AP and the Arbitration can define this time (15 month)

TPT agreement Encourage the use of international standards, same, can go further than the
International Standard, but under justification

Article 2 TPT → does no include a list of general exceptions like the GATT does
- Is an open list of exception, but they hay to be legitimate
- Is more strict, really be ready to explain why you did go further, but since
the list is not closed, is more likely to be prosper if its not discriminatory

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 INTERNATIONAL TRADE LAW AND POLICY. Ángela Yanguas Luque

Field of application

Technical regulations:
Standards: the physical characteristics of the products
How is going to be produced

You cannot discriminate, but why are you really asking for this specific measure.

The check of the compliance, do you trust the authorities of the other countries
to check the conformities,

EC-Seals case DS400: European Communities — Measures Prohibiting the Importation and
Marketing of Seal Products

Panel TBT applies

AP GATT applies
- The EU violated MFN and NT
- EU justify for public morals
- BUT the EU does not apply with the Chapeau because is not consistent
the why of apply the measure

Which agreement VIDEO

applies?

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 INTERNATIONAL TRADE LAW AND POLICY. Ángela Yanguas Luque

SESSION 13
TRIPS – Trade-Related Aspects of Intellectual Property Rights.

Introduction The TRIPS Agreement (1994)

Connection with international trade → WIPO (organization)

● TRIPS substantive standards of protection: copyright, trademarks,
Geographical indications, Industrial designs Patents, Layout-designs of
integrated circuits, Protection of undisclosed information, Control of
anti-competitive practices in contractual licenses

Tries to create a harmonize agreement (like the SPS and TPT)

Rules comes from:

● The Agreement sets these standards by requiring, first, that the
substantive obligations of the main conventions of the WIPO,
● the Paris Convention for the Protection of Industrial Property (Paris
Convention) and
● The Berne Convention for the Protection of Literary and Artistic Works
(Berne Convention) in their most recent versions, must be complied
with.

Covered rights Copyrights: Harry Potter

Trademarks: iPhone

Geographical indicators: champagne

Patents: covid-19 vaccines

(Minimum cover)

Agreement There are not LIKE PRODUCTS

- Nationals of the WTO members are protected

1) Litigation in National Courts

2) WTO litigation

To get into WTO litigation, they need to convince their government to start the
WTO litigation, since they are losing money, or serious damage to the country.

STEPS 1) Consultations
2) Panel (if complainant wants)
3) Appeal to the Appellate Body

IP dispute

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