Cover

Title

Copyright

Contents

Foreword

Introduction

Appellate Body Report in EC–Bananas III : waiver-thin, or lock, stock, metric ton?

1. Introduction

2. Factual background and original compliance Panel findings

2.1 Order of events2

2.2 Relevant documents

3. Claims on appeal, findings of the AB, and some observations

3.1 Procedural issues

3.1.1 Article 9.3 DSU and Rule 20(2)(d)(i) of AB Working Procedures

3.1.2 The legal effect of the Understandings on Bananas and the use of estoppel in the WTO

3.1.3 ‘Repeal’ of the challenged measures

3.1.4 Legal effect of Panel suggestions and the relationship of Articles 19.1 and 21.5 of the DSU

3.1.5 Article 3.8 DSU and nullification or impairment suffered by the US and Ecuador

3.2 Substantive issues

3.2.1 Non-discriminatory administration of tariff quotas under Article XIII

3.2.2 Doha Article I Waiver as ‘subsequent agreement’

3.2.3 Interpretation of the EC market-access commitments and expiry of the EC’s ‘MFN’ tariff quota

4. A law and economics perspective on certain aspects of the AB Report in Bananas III (21.5)

4.1 Article XIII GATT and the economics of tariff quotas

4.1.1 A brief economic assessment of tariff quotas

4.1.2 The distribution of trade under tariff quotas and the AB’s test of Article XIII:2

4.1.3 Quota-allocation methods, distribution of trade, and the inherent contradictions in Article XIII:2 GATT

4.1.3.1 Market allocation methods

4.1.3.2 Quasi-market allocation methods102

4.1.3.3 Discretionary allocation methods

4.1.3.4 Article XIII:2(d) GATT and historical allocation

4.1.3.5 Ways of making quota allocation compatible to Article XIII:2 GATT

4.2 Looking forward: the relationship between compliance Panels and Article 22.6 arbitrations

4.2.1 The implication of ‘overlap and coincidence’ of NoI

4.2.2 Expired measures and the starting date for retaliation

4.2.3 The nature of nullification or impairment

5. Conclusion

References

Guilt by association: US – Measures Relating to Shrimp from Thailand and US – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties

1. Introduction

2. Background to the dispute

3. Claims

3.1 Panel stage

3.2 Key issues analyzed by the Appellate Body

3.2.1 ‘As applied’ claims

3.2.1.1 Temporal scope of GATT Article VI : 2 and 3 Ad Note

3.2.1.1.1 Interpretation of the phrase ‘pending final determination of the facts in any case of suspected dumping’

3.2.1.1.2 EBR constitutes an additional response to dumping

3.2.1.1.3 Relationship between EBR and ADA Article 7

3.2.1.2 Reasonableness of the bond requirement

3.2.1.2.1 Obligation to assess risk of individual im

3.2.1.2.2 Reasonableness of the likelihood rates would increase

3.2.2 ‘As such’ claims

3.2.2.1 Amended CBD is inconsistent with Articles 1 and 18.1 of the ADA and Articles 10 and 32.1 of the SCM Agreement

3.2.2.2 ADA Article 9 and SCM Agreement Article 19

3.2.3 US claim – the Panel’s analysis of the term ‘necessary’ in Article XX(d) of the GATT 1994

4. Legal and economic analysis

4.1 Legal issues

4.1.1 Background discussion

4.1.1.1 Retrospective vs. prospective collection of ADD/CVD

4.1.1.2 Customs bonds in the US

4.1.2 The Ad Note Article VI : 2 and 3 GATT 1994

4.2 Economic issues

4.2.1 Risk of default for shrimp

4.2.1.1 What was known about defaulters?

4.2.1.2 Is shrimp like other defaulters?

4.2.2 The need to evaluate exporter and importer risk

4.2.3 Cost of EBR

5. Concluding comments

Mexico–Olive Oil : Remedy without a cause?

1. Introduction

2. Background

2.1 Legal and factual background

2.2 The trade, policies, political-economy facts, and backgroundof the case

3. Discussion of legal findings

3.1 ‘Peace Clause’ claims

3.2 Initiation of the investigation

3.3 Procedural claims regarding the conduct of the investigation

3.4 ‘Pass-through’ of subsidy benefits

3.5 Definition of ‘domestic industry’

3.6 Claims relating to the injury analysis

3.7 Summary of the Panel’s findings

4. Legal-economic analysis

4.1 Injury by subsidy and Mexican examination of ‘any known factors’

4.1.1 Legal aspects of the findings on ‘any known factors’ : standard of review

4.1.2 Economic purpose of CVD provisions of the SCM Agreement

4.1.3 The isolated effect of an EC olive-oil-production subsidy on the market

4.1.4 The isolated effect of the loss of the Ybarra brand and distribution network to Mexican olive-oil producers

4.2 Implementation of ‘procedural’ violations of the SCM and Anti-Dumping Agreements

4.3 Other issues in the Panel Report

4.3.1 The ‘pass-through’ issue

4.3.2 Is a producer that has ceased to produce entitled to seek trade-remedy relief?

4.3.3 Reliance on the domestic producer’s business plan as evidence of injury

5. Conclusions

References

US–Stainless Steel (Mexico)

1. Introduction

2. Legal issues in the appeal

3. Economic issues

References

Continued Suspense: EC–Hormones and WTO Disciplines on Discrimination and Domestic Regulation

Introduction

1. Conceptual considerations

2. Continued Suspension

3. WTO Discipline of Domestic Regulation: Comparing the GATT III/XX Complex to the SPS 2.2/5.1/5.7 Complex

4. The relationship between discrimination and post-discrimination disciplines

5. Concluding remarks

United States – Subsidies on Upland Cotton Recourse to Article 21.5 by Brazil

1. Background

2. Article 21.5: Scope of ‘Measures Taken to Comply’

2.1 Raising previously litigated but unresolved issues in Article 21.5 DSU proceedings

2.2 Subsequent subsidy payments and Article 21.5 proceedings

2.3 Summary

3. Evidentiary issues

3.1 GSM 102 export credit guarantees

4. Conclusion

China – Measures Affecting Imports of Automobile Parts

1. The dispute

1.1 The measure at issue

1.2 The complainants’ claims and China’s defense

2. The Panel’s findings

3. China’s appeal and the Appellate Body’s findings

4. Legal analysis

4.1 Border measure or internal charge – a fine line

4.2 Reviewing the meaning of domestic legislation – a matter of fact or law?

5. Economic analysis

5.1 Incentives for abuse on both sides

5.2 Four relevant questions related to the case

India – Additional and Extra-Additional Duties on Imports from the United States

Introduction

1. Facts, claims, and findings

2. Legal analysis

3. Economic analysis

3.1 WTO rules and efficient trade and domestic policies

3.2 Problems with border tax adjustments

3.3 Implications for the debate on carbon border taxes

4. Conclusion

References

Comment India – Additional and Extra-Additional Duties on Imports from the United States

1. Introduction

2. The relationship between the GATT provisions governing import charges and those governing internal taxes

3. The WTO law governing the application of domestic taxes and regulations to imported products and products destined for exportation