Chapter
2.3.2 The Benchmark Outcome: Unilateral Policy Decisions
2.3.3 An Efficient Trade Agreement
2.3.4 The Design of Trade Agreements
2.3.4.1 Trade Agreements Are Negotiated
2.3.4.2 Trade Agreements Must Be Self-Enforcing
2.3.4.3 Trade Agreements Are Explicit and Incomplete
2.3.4.4 Trade Agreements Involve Reciprocal Exchanges of Concessions
2.4 A Special Case: The National Market Power Model
2.4.1 When Free Trade Is Unilaterally Optimal
2.4.2 The Unilateral Incentive to Exploit National Market Power
2.4.3 The Basic National Market Power Model
2.4.4.1 The Structure of the Economy
2.4.4.2 Do Countries Have Sufficient Market Power?
2.4.4.3 Richer Descriptions of the Politics of Trade-Policy Formation
2.4.4.4 The Role of Tariff Revenue
2.4.4.5 Labeling the Government Behavior That Trade Agreements Address
2.4.5 Are Predictions from the National Market Power Model Compatible with the Design of the GATT?
2.4.5.1 Border Instruments Are Regulated, But Alternative Policies Are Treated Differently
2.4.5.2 The Emphasis on Reciprocity
2.4.5.3 Border Instruments Are Regulated, But Domestic Instruments Are Not
2.4.5.4 The Most-Favored Nation Principle
2.4.5.5 The National Treatment Principle
2.4.5.6 Rules Concerning Preferential Trading Agreements
2.4.5.7 Possibilities to Escape Bindings
2.4.5.8 Gradual Trade Liberalization
2.4.5.9 Export Taxes Are Legal
2.4.5.10 Subsidies Are Restricted
2.5 Trade Agreements as Government Commitment Devices Vis-à-Vis Constituent Interests
3.1.1.1 Tariff Commitments
3.1.1.2 Quantitative Restrictions and “Other Measures”
3.1.1.3 MFN and Exceptions
3.2 The Rationale for Negotiated Constraints on Traditional Instruments of Protection (Tariffs and QRs)
13 The Negotiating History
3.2.1.1 The Negotiation Process
3.2.1.2 Negotiations on Quantitative Restrictions (QRs)
3.2.1.3 Foreign-Policy Considerations in the Negotiations
3.2.2 The Rationale According to Case Law
3.2.3 The Rationale According to Economic Theory
3.2.4 From Economic Theory to Interpretation of Legal Rules
3.3 Implementation in WTO Law: Tariffs and QRs
3.3.1 Key Features of the Law on Tariff Commitments
3.3.2 The Case Law on QRs
3.4 The Rationale for MFN and Its Exceptions
3.4.1 The Negotiating History
3.4.2 The Rationale According to Case Law
3.4.3 The Rationale According to Economic Theory
3.4.3.1 Customs Unions, Free-Trade Agreements, and the Generalized System of Preferences
3.5 Implementation in WTO Law: MFN and Exceptions
3.5.3 Special and Differential Treatment
3.6 The Rationale for Disciplines on Export Subsidies and Export Tariffs
3.6.1 The Negotiating History
3.6.2 The Rationale (or Lack Thereof) in Modern Economic Theory
3.7 The Case Law on Export Policies
4.1.1 The Text of Art. III GATT
4.1.2 Art. III GATT 1947, Art. III GATT 1994
4.2.1 The Rationale for NT in Negotiating History
4.2.1.1 The Forum and Context of Negotiation
4.2.1.2 The Transformation of NT
4.2.1.2.1 The GATT, an (Independent) Part of the ITO.
4.2.1.2.2 NT in the Various Drafts
4.2.1.3 Summarizing the Negotiating Record
4.2.2 The Rationale for NT in Case Law
4.2.3 The Rationale for NT from the Perspective of Economics
4.2.3.1 The Purpose and Structure of Trade Agreements
4.2.3.1.1 A Digression on Policy Objectives.
4.2.3.1.2 Externalities from Unilateral Decisionmaking.
4.2.3.1.3 The Incompleteness of Trade Agreements.
4.2.3.2 The Role of NT: To Filter Out Protectionist Policies
4.2.3.2.1 The Efficacy of NT for Given Tariff Levels.
4.2.3.2.2 The Interaction between Tariffs and Taxes.
4.2.3.2.3 The Nature of the Costs of Judicial Errors.
4.2.3.3 An Alternative View of the Role of Trade Agreements
4.2.3.4 Summary of the Rationale of NT from an Economic Perspective
4.3 The Implementation of NT in Case Law
4.3.1 The Case Law Regarding Art. III GATT
4.3.2 The Legal Discipline
4.3.2.1 Which Measures Come under the Scope of NT?
4.3.2.2 The Right to Regulate
4.3.2.3.1 The Working Party Report on Border Tax Adjustments.
4.3.2.3.3 Applied So as to Afford Protection (ASATAP).
4.3.2.3.5 Taxation in Excess.
4.3.2.4 Nonfiscal Instruments
4.3.2.4.1 Laws, Regulations, or Requirements.
4.3.2.4.2 Affecting Sale, Offering for Sale.
4.3.2.4.3 Like Products in Art. III.4GATT.
4.3.2.4.4 Less Favorable Treatment.
4.3.2.4.5 No Effects and No Intent Either? The Standard of Review.
4.3.2.5 Allocation of the Burden of Proof
4.3.2.5.1 Making a Prima Facie Case.
4.3.2.5.2 Refuting a Prima Facie Case.
4.3.2.5.3 Art. III GATT Case Law.
4.3.3.1 Art. IV GATT: Film
4.3.3.2 Art. XX GATT: General Exceptions
4.3.3.3 Art. XXI GATT: Security Exception
4.3.4 Critique of the Case Law
4.4 How Should NT Be Interpreted?
4.4.1 Two Approaches to Evaluate Protection
4.4.1.1 Interpretation XX
4.4.1.2 Interpretation III
4.4.2 The Difference in Outcome with the Two Approaches
4.4.2.1 Interpretation XX Imposes Additional Restrictions for Measures Not to Constitute Illegal Protection
4.4.2.2 The Evidentiary Burden Falls Heavier on the Complainant with Interpretation XX
4.4.2.3 The Nature of Measures That Are Market-Like But Not Policy-Like
4.4.3 Which Interpretation Is Preferable?
4.4.3.1 The List of Permissible Objectives in Art. XX GATT
4.4.3.2 The Additional Requirements Imposed by Art. XX GATT
4.4.3.3 The Allocation of the Burden of Proof
4.4.3.4 Consequences for Trade Liberalization
4.4.3.5 Concluding Discussion
4.4.4 Further Remarks on Interpretation III
4.4.4.1 The Relevance of Art. III.1GATT
4.4.4.2 The Relative Facility to Find Grounds for Complaints
4.4.4.3 Why Not Only Policy Likeness, Why Also Market Likeness?
4.4.4.4 The Relationship Between Like and DCS Products
4.4.4.5 GATT Does Not Request Full International Efficiency
4.4.4.6 Can a Measure That Violates Art. III GATT Be Justified Through Recourse to Art. XX GATT?
4.4.4.7 On Evaluating Market Likeness and Protection
4.4.4.8 Intent Versus Effect
4.4.4.9 The Aims and Effect Test
4.4.4.10 Taxation Based on Features of the Production Process (PPMs)
4.4.5 Revisiting the Leading Cases in Light of Our Proposals
4.4.5.1 Japan-Alcoholic Beverages II
4.4.5.2 Korea-Alcoholic Beverages
4.4.5.3 Chile-Alcoholic Beverages
4.4.5.4 Concluding Remarks on the Revisit to the Leading Cases
Legal and Economic Principles of World Trade Law
( The American Law Institute Reporters Studies on WTO Law )
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