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Flashcards by Katie Best, updated more than 1 year ago
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Created by Katie Best
over 6 years ago
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| Question | Answer |
| Dispute Settlement (from lecture) 1. consultation between disputing parties 2. 3rd party adjudication (3-member panel, issues a ruling) 3. (potentially) Appeal Process (goes to Appellate Body, who can reverse decision) 4. if case wins, and report says a state did violate WTO rules, then we get to submit our right for dispute resolution against that country - monitored by dispute settlement body (DSB) | sounds fair, but what if you're Honduras? - say, US violated you're intellectual property rules, you can sanction them, sounds good? - Honduras imports a lot of phones from the US and EU - we're going to put a 10% tax on any iPhone coming into Honduras - so, everyone in Honduras starts buying phones from the EU because they're now cheaper than the iPhone - this is making iPhones uncompetitive in out market as an act of retaliation - but, this doesn't impact the US as much as the same sanction would impact Honduras - so, power dynamics are at play - more powerful states can impose sanctions that really matter |
| WTO Dispute Settlement System and Developing Countries - there are some examples in which developing country members successfully challenged trade measures of a developed country using WTO dispute settlement mechanism | the "US underwear case" - US invoked a safeguard measure under the Agreement of Textiles and Clothing and restricted imports of underwear from Costa Rica - Costa Rica brought a claim sagest the US and argued that this was contrary to the safeguard provision of the ATC - the Appellate Body accepted CRs claim and rules the US had committed a violation - example of smaller and less powerful states can prevail over more powerful ones as long as their legal claims are correct and persuasive - in these cases, if the developing country had to settle the dispute by bilateral negotiations, the outcome would have been worse for them |
| Good things done by the Appellate Body! - like products and directly competitive products - also important procedural issues like.. - burden of proof - anti-dumping---zeroing | "like products and directly competitive products" - one of the most essential concepts in WTO law - one of the most fundamental principles of the WTO regime is non discrimination, i.e. the principles of most favoured nation treatment and of national treatment - the former requires a WTO member to accord a product of one member treatment no less favourable than it accords to a like product imported from another member - the latter requires a member to accord treatment of a product imported from another member no less favourable than it accord to a like domestic product - treat everyones products the same compared to everyone else, and treat them the same as your own <333 - Japan alcohol case |
| PROCEDURAL PRINCIPLES - burden of proof: is a rule of procedure to decide who is responsible for providing what in the litigation process - often has a decisive effect in the outcome of litigation | anti dumping--zeroing: - anti dumping is an area where many disputes occur with regard to interpretation of the anti dumping agreement - “zeroing” is a practice in which an anti dumping authority of an importing country calculates minus dumping margins as zero, and thereby artificially inflates the dumping margin AB outlawed this ? I think - the decision was important because it made clear that evasive conduct such as zeroing would be held as a violation of the anti dumping agreement |
| CRITICISMS OF THE APPELLATE BODY LITERAL INTERPRETATION: - some argue that the Appellate Body has interpreted provisions of WTO agreements too literally and this literal interpretation has deprived the AB of necessary flexibility and adaptability to interpret and apply provisions of agreements in such a way that current and newly rising issues are properly addressed - it is true that the Appellate Body has taken a literal or textual approach in interpreting provisions of agreements - in the Japan-Alcohol case,the AB analyses the grammatical structure of the relevant agreement, and arrived at the conclusion that there should be a distinction between like products and directly competitive products | In defence... - interpreters are required under treaty, to abide by the words of a treaty in their original meanings, to observe faithfully the dictionary meanings of words in a treaty and in this sense, a certain degree of literalism is inevitable - It could be said that the AB has adhered to strict literalism due to the reality that the only common ground for the members with diverse sense, social norms, culture etc is the agreed texts of the agreements - organisation is run by the states, so wanted to be loyal to the agreements, which is in turn being loyal to the states - |
| it has been 15 years since the WTO was established and the reputation of the Appellate Body is now more firmly established than it was in 1995. it is probably time for the Appellate Body to be free from this preoccupation and fear and engage in flexible interpretation basically it was so literal to keep members happy, couldn't overstep the mark and had to be loyal to the word of the members which is the agreements, but now we all trust the AB and it is time for it to be more flexible in its interpretation <3 | MAKING LAW RATHER THAN INTERPRETING LAW: - of course, any interpretation of law cannot be just a mechanical process - interoperation necessarily involves some value judgement, whether it is a value in economic policy or for other reasons - the distinction between interpreting law and making law is often subtle indeed - herefore some elements of making law inevitably come in when interpreting provisions of law unless the provision in question is absolutely crystal clear and just a mechanical interoperation suffices |
| in defence... - it should be noted that the Appellate Body is cautious about not making law, especially when the issue is under negotiation - in a dispute between the USA and EU, which involved interpretation of the “sequence issue”, the AB, after noting that there had been a proposal to the General Council to amend both articles, clearly stated that only WTO members have the authority to amend the DSU or to adopt such interpretations - “determining what the rules and procedures of the DSU out to be is not our responsibility” | more examples of WTO Dispute Settlement helping out developing countries... - In the EC–Sardines case, the EC prohibited the use of the label ‘sardines’ on canned foods made of fish caught in any area other than the North Sea, the Mediterranean Sea, and the Black Sea. Peru argued that this was a violation of Article 2.4 of the Agreement on Technical Barriers of Trade (TBT) because this provision mandates WTO members to base their compulsory standards on international standards, and the relevant international standard permitted the use of this expression with some conditions. Here, again, the Appellate Body agreed with Peru and held that the EC was in violation of the TBT Agreement. |
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