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date: 23 July 2019

(p. 773) Index

(p. 773) Index

n = footnote.

Aarhus Convention (1996) 682
Abbott, Roderick 494, 497n
Abi-Saab, Georges 324, 337
accountability
civil society's demands for 672, 674–5, 692
accountancy sector 167
ACP (African, Caribbean, and Pacific) Countries, 86n 97, 245
preferential treatment 499, 501n
activism, judicial 473–7
identification 474–5
inappropriate accusations of 474–5
(lack of) international impact 476–7
‘adequate and reasoned explanation’, criterion of 407–8, 425–6
Adlung, Rudolf 176
admissibility 309–10, 312
Advisory Centre on WTO Law (ACWL) 293–4, 493–4, 493n
affirmative defences 359
Afghanistan 743
Africa
damage done by protectionist policies 575
political instability 579
African Group (in WTO) 491n, 493n
African Growth and Opportunity Act (US 2000) 499
Agenda 21 509
Agreement on Import Licensing 108
Agreement on Rules of Origin (AROO) 108
Agreement on Textiles and Clothing (ATC) 107–8, 394, 396n, 397
agriculture 19
Agreement on 107–8, 189–90, 291, 491, 515n, 585, 658
Committee on 88
and developing countries 575–6
disputes 658
exclusion from GATT 487
as focus of SPS measures 599–600
international negotiations 39
market access 26–7
and RTAs 249
subsidies 26–7, 513, 575–6
trade liberalization 20–1
trade remedies 582n
Airbus, 120n 364
Al Qaeda 743
alcoholic beverages, trade in 414
geographical indications 198–9
Alexandrov, Stanimir 446
Alien Tort Claims Act (US 1789) 735
Almaty Guidelines 682–3
‘alternative plausible view’, as criterion 426–7
American Law Institute 461n
amicus curiae briefs 66–7, 124–5, 286n, 291, 291n, 295, 369–70, 474, 533, 652, 675–6, 689–9
defined 364
objections to, 461n689, 690
Andean Community 158
Andean Trade Preference Act (US 1991) 499
animal welfare 531
Annan, Kofi 730
Annecy Round (1949) 16, 36n
anthropocentricity, of trade community 506–7
anti-competitive regulation 197–8, 205
Anti-Dumping Act (US 1916)657–8
(p. 774) Anti-Dumping Agreement (1979) 17, 83, 97–8, 108–9, 290–1, 292n, 349, 361, 468, 469–71, 648, 657
Committee on 109
labour provisions 557
and standard of review 362, 3823nn, 386n, 387–8, 390–6, 397n, 398, 401, 403, 423, 433–4
structure 394–5
anti-dumping measures 389, 469–71, 487, 657–8, 659
relationship with competition law 661–4
Antimonopoly Law (China2007) 654
Antimonopoly Law (Japan 1998) 654
antitrust law 650–2, 658, 660–1
relationship with anti-dumping 661–4
APEC (Asia-Pacific Economic Cooperation) 242
Appellate Body 66–7, 280–93
additional memoranda/procedures, 288n 370
admissibility rulings 312–13
(alleged) political bias 281–2
amicus curiae briefs 369–70, 461n
applicable law 315–20
availability 282–3
backgrounds 282
on burden of proof 358–9
closed hearings 296
commentary on panel procedure 358–9, 361–2
completing the analysis 370–1
composition 280–1, 284, 533
creation 347, 423, 530
criticisms 74, 122, 122n, 124–6, 281–2, 292, 461n, 473–7, 690
decision-making process 287–8
departures from rulings 289–91
direct review of Members' measures 422n
dissenting opinions 285, 547n
on environmental issues 516–17, 517n, 518, 519–20, 529–31, 533, 537
Exchange of Views 287–8
fees 283
function 421–2, 423, 425, 432
on health issues 603–4, 611–15
on human rights-related issues 586–8
inherent powers 306–15
institutional role 432
on international standards 601
jurisdiction 299–300, 301, 302, 306–15
on labour standards/trade restrictions 546–7, 550–1, 565–6
legal precedents 289, 339
legal status 277–8
mandate 289
membership 281–4, 286–7, 304–5
methodology see separate main heading
on national treatment 758–64
nationalities 281, 287
procedural issues 368–71
procedure 288–9, 365–71, 425
overview 365–8
proposed reforms 283–4
quasi-judicial functioning 304–5
remand power, lack of 370–1
reports: adoption 123, 306, 368
binding status 448–9
drafting 366–7
implementation 371–5, 496
length 282, 282n
review of panel's findings 421–33
application of law 429–33
factual 423–8
legal 422–3
on risk assessment 603–4
rotation of personnel 286–7
scope of review 368–9
Secretariat 294, 425
selection 281
significance of decisions 289, 291–3
size 284
standards of review 395–6, 417–20, 421–33
commentary on, 383n 399, 401–2, 406–7, 420–1
deferential 424, 430
strengths 284–5
term of service 283
time frame 284, 284n, 367–8
Working Procedures 285–6, 365–6, 689
Arab Fund for Economic and Social Development 716
arbitration 371–2, 373–4
(p. 775) Argentina 199, 259, 273n, 334n, 335n, 606, 624, 692
ASEAN (Association of South-East Asian Nations) 81, 264, 757
Framework Agreement on the ASEAN Investment Area 633–4
assets, freezing 744
Athens 7
Australia 190, 199, 499n, 629
conduct of international disputes 224, 449–51, 462n, 605
FTAs 202
Austria-Hungary, tariffs 11
balance/balancing
of national regulations 226–8
of payments 146–50, 155, 173, 582–3
of powers 94, 382
test 516–17, 517n
Balance of Payments (BOP) Committee 87–8
bananas, trade/tariffs, 86n 97, 180–1, 350n, 440, 455, 501
Bangladesh 490
Barral, Welber 530n
Basel Convention on the Control of the Transboundary Movement of Hazardous Wastes (1989) 510–11, 519, 522
Beeby, Christopher 284n
Belarus 499n
Belgium 531, 546, 548, 556
Benin 575
Bhagwati, Jagdish 18, 243
Bierce, Ambrose 727n
Biodiversity Convention (1992) 334–5, 334n, 517, 535n
Biosafety Protocol (2000) 334–5, 335n
BITs (bilateral investment treaties) 629–40, 740–1
contrasted with WTO approach 629, 636, 643–4
dispute settlement 638–40
expropriation 636–8
minimum standard of treatment 634–6, 640
non-discrimination 630–4
proliferation 629, 629n, 641
standard provisions 629–30
US model 621–2, 632, 636
Blakeney, Michael 199–200
Boeing, 120n 364
Bolivia 632
border tax adjustments 520–1, 526, 547n, 608
Bown, Chad P. 482–3, 492n, 497n
Brazil 2, 40n, 113, 191, 244–5, 257–8, 272n, 273n, 484n, 559, 624
conduct of international disputes 324, 431–2, 462n, 517, 531n, 614–16, 691–2
tariff levels 136
use of dispute settlement system 490
Bretton Woods Conference (1994) 14, 32–3
Breyer, Stephen G. 652
Brundtland Report (1987) 509
Brussels Ministerial Meeting (1990) 25
Budget, Finance and Administration (BFA) Committee 87–8
Buergenthal, H omas 333n
burden of proof 291, 358–9, 764–5, 768
Burkina Faso 575
Burundi 709–10, 709n
‘California Effect’ 509
Canada 40, 113, 199, 233, 273n, 295–6, 499n, 624
conduct of international disputes 418–19, 430, 475, 605, 606, 623–4, 658, 691–2
relations with US 244–5, 259–60, 263–4, 623–4
trade reform 22
treaty participation, 334n335n, 562, 629, 635
capacity-building 686–7
Caribbean Basin Economic Recovery Act (US 1983) 499
CARICOM (Caribbean Community) 158
Cass, Deborah 70–3, 126
cassation, courts of 302
Chad 575
Chang, Ha-Joon 16n
Charnovitz, Stephen 525, 533n
Chesterman, Simon 713n
Chevalier, Michel 10
(p. 776) Chief Executive Board (WTO/UN) 720
Chile 199, 290n, 317, 414, 484n
China 2, 82, 179, 199, 245, 427, 484n
accession to WTO 43, 97
competition law 654
conduct of international disputes 190
international trade negotiations, 40n 113
labour issues 561
market economy 648
Chinese Taipei 199
Churchill, Winston 247
CIEL (Center for International Environmental Law) 678
CITES (Convention on International Trade in Endangered Species, 1973) 510, 514, 519, 522, 525, 535
civil society 673–8
criticisms of WTO/corporations 730
diversity of views 672–3, 677
objections to active role 674–5, 675
relationship with WTO 66–7, 672, 692–3
role in international trade law 2 see also NGOs
Classical Theory (of economics) 8–9
clothing, production 178–9
Cobden, Richard 9–10
Codex Alimentarius 92, 221, 522, 546, 555, 601
collective supervision (of WTO procedures) 350–1
Colombia, 350n 493, 624
comity, positive/negative 666, 666n
Committee on Regional Trade Agreements 251–2
Committee on Trade and Development (CTD) 87–8
Committee on Trade and Environment (CTE) 516, 534–5
Committee on Trade in Financial Services, 176n 177
Common Market (Europe)
role in international negotiations 16–17, 18
Companies Act (UK 2006) 732
compensation, payment of, 123n 372–3, 452, 453, 457
claims for 455
for expropriation 637, 638, 644
competition laws/policy 205, 647–67
appropriateness of WTO as forum 655
choice of jurisdiction 656
common ground with WTO policies 664–5
extraterritorial application 649–50
harmonization 197–8
international cooperation 664–6
national/regional laws/cases 650–4
national variations 654–5
objectives 647
private vs governmental restraints 656
provisions in WTO agreements 648–9
relationship with anti-dumping 661–4
and RTAs 241–2
trade remedies 659–64
and voluntary export restraints 659–61
compliance 292–3, 371–5
evidence of 420–1
inducing 453–4
international law and 439
and municipal law 454–7
proceedings 373
rates 453, 688–9 see also non-compliance
computer equipment, trade in 179, 663–4
tariffs 24
concessions, suspension of 374, 452
problems, as effective remedy 452–3, 457
conciliation, procedures 466–7
Condliffe, John 7
Conference on the Illicit Trade of Small Arms and Light Weapons (2001) 717
Congo, Democratic Republic of 744
consensus, requirement of
in GATT 52, 272, 515n
‘reverse’ 49, 272, 306, 357n
in WTO 42–3, 52, 88n, 474
consent theory 51
consistency, requirement of 224–5, 422n, 444–6, 531n, 544, 605, 623–4
exceptions (labour-related) 549–50
constitutionalism, WTO and 70–4, 752–4
consultation
criticisms of process 465n
(p. 777) requests for, 350n 351–3, 461n
requirement of 465
Consumers' Union (US) 660
Copenhagen Summit on Social Development (1995) 593–4
copycat products 591n
Corinth 7
Corn Laws (UK 1815) 10, 580n
corporate accountability 725–35
codes of conduct 557, 733–4
defined 725–6
proposed mechanisms 739–45
dispute settlement 739–42;
punitive 742–5
corporate social responsibility (CSR) 728–35
defined 728
incentives 731
questions raised by 728–31
cost-benefit balancing 142–6, 154–5
cost-effectiveness test 145–6, 154–5
Costa Rica 199, 366n
Cotonou Agreement (2000) 239, 499, 501n
Cottier, Homas, 115n 188
Council for Trade in Goods (CTG) 86–7, 250, 252
Council for Trade in Services (CTS) 86–7, 168–9
Council for Trade-Related Intellectual Property Rights (TRIPS Council) 86–7
Council of Europe 81, 89
counsel
in Appellate Body hearings 288–9, 291
in panel hearings 364
countermeasures, imposition 373–4, 389, 395–6, 441, 452–4, 659
effectiveness 453
proportionality 452 see also concessions, suspension of
courts/tribunals
admissibility rulings 309–10, 312–13
powers 300–1
right to determine own jurisdiction, 3067nn 306–9 see also names of institutions
CPA (Coalition Provisional Authority) (US/UK, in Iraq) 713–16
Croley, Steven 388
Cuba, 484n 624
customary law 51, 578n
investment rules based in 635
customs unions 63–6, 238, 239–40, 246, 757
defined 240, 248
Customs Valuation Agreement (1994) 108, 663–4, 663n
Czech Republic 640
damages, awards for 644
Davey, William J., 357n388n, 419, 483, 489–90, 496
de novo review
alternatives to 402–3
by Appellate Body 422–3, 429
defined 399
examples 400–3
exclusion 390–1, 393, 396–7, 398–9, 405, 409, 429
justification 386
requirement/permissibility 389, 410–16, 433–4
Decision on More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries see ‘Enabling Clause’
decision-making, vertical transfer of powers 679–80
deference, as standard of review
Appellate Body, to panels' findings 424, 430
panels, to Members' findings 389–90, 394–6, 397, 398–9, 403, 409–10, 416–20
WTO, to UN law 720
del Carmen Dominguez, Maria 166, 173, 176
deregulation 583, 590–1
Desertification Convention (1996) 682
developed countries
CSR in 731–3
domination of OECD 628–9
environmental regulation 507, 513
protection of economic interests 487
trade information networks 494–5
treatment of preferential rules 498–9
(p. 778) developing countries 482–503
calls for reform of system 484–8
competition law 665–6
complaints under GATS 169–70
concerns regarding NGOs 676, 680, 692
concessions by/to, shortage of 487–8
conflicts with developed world 19–20, 40, 487–8, 507, 513, 624–5, 749
criticisms of Appellate Body 124–5
CSR in 733–5
defined 485
and dispute settlement system:
constraints on 490–7
levels of participation, 272n 461, 489–90, 492–3, 497;
reluctance to use 482–3, 497;
special rules relating to 350, 355
and environmental issues 507, 513, 522, 526–7
and human rights 573, 575, 581
impact of protectionism 575, 581
implementation problems/rates 496–7
and intellectual property issues 188–9, 191, 205
lack of trade information services 483, 494–5
legal expertise/assistance: lack of 483, 491–4
provision for 493n
marginalization 483, 486–7, 628–9
membership of GATT 84n
NGOs representing 676, 677–8
objections to PPM regulation 230
opposition to GATT proposals 19–20
positive role in GATT 24–5
preferential rules 483–4, 498–502, 565–7
proposals for WTO reform 279–80
role in WTO 24–7
and RTAs 245–6, 253–4, 501n, 561–2
share of world market 483, 495–6
size of domestic market 483, 495–6
trade options 582–3
and TRIMS Agreement 624–5
vulnerability to retaliation 483, 497
development
agencies 494–5
relationship with trade 482 see also developing countries
Dillon Round (1960–1) 16, 17, 36n
Director-General (of WTO) 58, 81, 88–9, 94, 116–8, 126–7, 365
candidates 686
role in dispute settlement 274–5, 285, 462, 492
selection of panels/arbitrators 275, 275n, 277, 279, 281, 371
disaggregation, calls for 752
discrimination
allegations 765–6
de jure vs de facto 587–8
human rights-based 586–8
prohibition of 211–14
RTAs and 243, 616
dispute settlement (under WTO) 51, 74–5, 121–6, 270–96, 438–58
adoption of reports 121–2, 123, 2723n, 350–1
alternative methods 350, 464–7
appeals procedure 49–50, 287–9, 347, 365–71
filing of Notice 365, 368, 369;
oral hearing 366;
right of either party 365–6;
scope 420–1;
third-party participants, 290n 366, 366n; see also Appellate Body
applicable law 299, 315–20
arbitration 371–2, 373–4
binding status of decisions 439, 442–6, 457, 502
caseload 489–90
civil participation in 688–90
comparison with other international courts/tribunals 303–315
competition-related cases 655–64
compliance 123, 292–3
rates 272–3, 2723n
contribution to international law 67–9
costs 491
countermeasures 373–4
(p. 779) economic model 492n
and environmental concerns 475–6
function 446–8
future needs 294–6, 466–7, 533–4, 642–3, 644
GATS and 169–70
handling of ambiguities 468–71, 477
implementation/enforcement 98–102, 123, 220–2, 347–8, 350–1, 371–5, 438–58, 496, 688–9
problems of 463–4, 471–2;
surveillance 375;
time frame 371–3
increasing complexity 491–2
inherent powers 306–15
initiation of proceedings 351–3
institutional structure 274–94
international significance 438, 688–9
and judicial overreaching 473–7
jurisdiction 299–315, 317–8, 349, 386, 444, 553
languages 367, 395n
media coverage 439–40
multiple challenges (to same measure) 356
mutually agreed solutions, desirability 462–3
open hearings 295–6, 363, 691–2
origins 270–1
participation, limits 364
positive achievements/comments 271–2, 345, 375–6, 438, 472–3, 477–8
procedures 28, 42, 43, 44, 345–6, 348–76, 462–3, 491
proposed reforms 273, 279, 283–4, 295–6, 750
quasi-judicial character 90, 220, 278, 287, 304, 464–5
relationship with international law 318–20, 330, 457
relationship with national autonomy 123, 220–2
requests for consultation, 350n 351–3, 461n
review (1997–9) 375–6
role of counsel 288–9
scope, limits set on 553
simplification 492–3
standard of review 379, 381–435
surveillance procedures 123
third parties, rights of 362–3
time frames 278–9, 284, 284n, 357, 367–8, 371–3, 465;
acceleration, 278n 350, 492
transparency 691–2
treaty interpretation and 315–17, 321–41, 463–4, 467–71;
special principles 336–8
TRIPS and 189–92
underlying principles 271–3
uniformity of procedure 349–50
uniqueness 27, 49–50, 70, 341–2
Doha Development Agenda (2001) 25, 91–2, 117, 238, 273, 375–6, 688
Doha Ministerial Decision on Implementation-Related Issues and Concerns (2001) 96–9, 106, 110–11
Doha Ministerial Declaration (2001) 91, 96n, 105, 193, 338n, 513, 534n, 685–6
Doha Round 25–8, 75, 131, 136, 242, 264
breakdown of negotiations 25–8, 41, 138, 155, 171, 461–2, 666, 749
dominant principles 85
GATS and 104, 166, 167–9
IP negotiations 190, 196, 198–9
NGO involvement 67
Dole Commission 477
Dominican Republic 199
conduct of international disputes 149
Drake, William J. 158–60, 171
DSB (Dispute Settlement Body) 43, 60, 86, 100–2, 121–3, 272, 273, 347–8, 442–3, 463
enforcement role 452
institutional role 275–6, 281
procedural role 350–2, 354, 365
Rules of Conduct 101–2
special meetings 354, 368
surveillance role 375
(p. 780) DSU (Understanding on Rules and Procedures Governing the Settlement of Disputes 1994), 42, 49–50, 68–9, 86, 100–2, 123, 250–1, 253, 274, 289, 293, 644
alternative initiatives 493–4
treaty interpretation 315–20, 322–6, 328, 342
authorization of countermeasures 373–4
on compliance/remedies 442, 451, 457
creation 271
developing-country provisions 489, 492–3
on judicial process 462–3, 465–6
on jurisdiction 299, 303–4, 311, 312, 313
lacunae 291, 294–5, 315–17
on panel/Appellate procedures 345, 346–50, 351–2, 353–4, 359–60, 361, 363, 367, 368–9, 371, 373–4
proposed reforms 273, 317, 375–6, 465, 491n, 530n
Rules of Conduct 355–6, 365
on standards of review 382–3, 385–6, 387–8, 396–7, 409, 419, 422–4, 425–6, 427–8, 431
due process 291
dumping margins, calculation 469–71, 469n
Dunkel, Arthur 117
Dunoff, Jeffrey L. 71, 535n
East Timor 697, 710, 711–12
ECHR (European Court of Human Rights) 533n
ECJ (European Court of Justice) 71, 142–3, 443n, 533n, 653, 752
‘eco-duty’ 520–1
‘eco-Imperialism’ 522
economic activity, problems of classification 179–80
economic partnership agreements (EPAs) 239, 562
ECOWAS (Economic Community of West African States) 719
Ecuador 199, 496
Edwards, Robert 641n
Eeckhout, Piet 139n
effectiveness, principle of 328–30
efficient breach, theory of 446–7
Egypt 199–200
Ehlermann, Claus-Dieter 285, 287, 339n, 493–4
Ehring, Lothar 339n
El Salvador 199
‘embedded liberalism’, 584n 591
emergency measures 151–4, 202n
employment, international targets 541
‘Enabling Clause’ (Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries) 253–4, 359, 486, 499, 500–1, 565–7
endangered species, trade in 510, 512
Energy Charter Treaty (ECT) 620, 643
environment/environmental issues 475–6, 506–38
complementarity with trade regime 506, 507, 509–10, 516, 537
conflicts with trade regime 506–7, 512–13, 528–38;
indirect 512–13
dedicated tribunals 533–4, 533n
developed vs developing countries 507, 513, 522, 526–7
future needs 533–4, 535–7
global organization/court, proposed 534, 536–7
governmental role 512
growth of interest in 506, 513–14
interpretation of international law 532
negative impact of trade 508–9, 510–11;
indirect 511
NGO activism 677–8
positive impact of trade 509–10
provision in international agreements 515n
transboundary/global harm 520–1, 532
WTO's interaction with 529–37 see also environmental measures
‘Environmental Kuznets Curve’ (EKC) 510
environmental measures/policies
coercive 520, 521n, 523
compatibility with trade regime 518–28, 535–6
extraterritorial 518, 524–5
function 518, 520–2
(p. 781) impact on corporations 724
impact on trade (direct vs indirect) 512–13, 518–20
national variations 513
product vs process, as target 518, 525–7
scientific support 518, 527–8
unilateral/multilateral 518, 522–4, 531
epidemics 97
equivalence, requirement of 222–3, 605–6
Esty, Daniel 506–7
European Coal and Steel Community (ECSC) 103
European (Economic) Community/Union (EEC/EC/EU) 238, 290n, 499n
‘banana waivers’, 86n 97, 180–1, 350n, 440, 455
compared with WTO 74, 89, 752–4
competition law 653, 654–5
compliance 454
conduct of international disputes 64–5, 190–1, 295–6, 408, 410–1, 415, 415n, 419, 493, 606, 691–2
frequency of appearances 287
constitutional structure 752–4
creation 247–8
environmental policy 531
exports, impact in developing countries 575
GATS schedule 558–9
human rights law 241–2, 578
intergovernmental meetings/decisions 103
international trade negotiations 40, 113, 624
labour questions 561
legal system, 121n 142–3, 419, 454, 456, 752–3
mediation requests 274, 350n, 493
Member State variations 415, 415n, 528
special status under GATT 63
tariff levels 18, 135–6
trade agreements 244–5, 256–8
trade law/policy, 89n 419, 455, 501n
Treaty, 89n 103, 158n, 454, 754–5
and TRIPS 187, 199
European Parliament 89, 89n, 94n
Eurostat 174
Evans, Gail 199–200
‘Everything But Arms’ schemes 499
evidence, at panel hearings 359–61
admissibility 360, 362, 412–13
Appellate Body's review of 426–7
margin of discretion 361
exceptions
as basis of WTO approach 2
general 585, 609
human rights and 584–6
in investment agreements 634 see also security; names of Agreements especially GATT 1994
exchange controls 11–12
exchange measures 147–8
case law 148–50
exhaustion (of IP rights) 195–6, 205
export(s)
balance with imports 623
performance requirements 623–4
restrictions 625, 700
unfair practices 659 see also voluntary export restraints
expropriation
definition/permissibility 636–7
incidences 623
indirect 637
prohibition 636, 637–8, 644
remedies 637, 638, 642–3
extraterritoriality 228–31, 233–4
of competition law 649–50
of environmental measures 518, 524–5
facts/factual findings 388–421, 475
Anti-Dumping Agreement and 390–6
distinguished from legal/mixed questions 432–3
evaluation 391, 424, 434
jurisdiction over 302
mixed with legal questions 391–2, 397, 405, 421, 429–33
national authorities as first trier 389–91, 394–6, 399, 434
(p. 782) plausibility, as criterion 426–7
rejection 390–1
review by Appellate Body 423–8;
procedural 425–8;
substantive 423–5;
review/comment 393
scope of inquiry 397
WTO panels as first trier 389, 409–10, 412, 425, 434
fairness, as economic/legal criterion 575–7, 635, 644, 737–8
FAO (Food and Agriculture Organization) 88, 90n
Fassbender, Bardo 72
Fast-Track Authority (US) 83–4, 89
FDI (foreign direct investment) 623, 627
defined 621
role in globalization 22–3
Federal Trade Commission (US) 657
fisheries
disputes relating to 133–4, 410–1, 475–6, 512, 515, 521n, 526, 605
NGO activism 677–8
subsidies 688
Fitzmaurice, Gerald 310n
Foreign A7 liates Trade Statistics 173
Foreign Trade Antitrust Improvement Act (US 1982) 650–1, 652
France 246–7
free trade movement 10
health measures 613–4, 759, 763, 767–8
labour law 551n, 554n
tariffs 11
free trade
arguments for 8–9
environmental impact 508–9, 535
national policies 9–10, 13
relationship with regulatory autonomy 210
Free Trade Area of the Americas 245
free trade areas/agreements (FTAs) 63–6, 238, 239–40, 755
coverage 248–50
defined 240, 248
investment provisions 641
popularity 561–2, 641, 666
TRIPS and 201–3
freedom of expression, right of 681–2
Friedman, Milton 726
Friedmann, Wolfgang 72
Friends of the Earth International 677–8
Friendship, Commerce, and Navigation Treaties 631–2, 634–5
‘G-20’ group 40, 40n
Gaja, Giorgio 61n
Gardner, Richard N. 14n
GATS (General Agreement on Trade in Services, 1994) 42, 62, 99, 158–84, 589, 595
2000 negotiations 167–9
application 178–81, 179n
basic features 160–2
competition provisions 648
conflicts between principles 254–5
creation 158, 171–2
criticisms 183
on deregulation 590–1
dispute settlement 169–70
and Doha Round 167–9
environmental provisions/interpretations, 515n 517, 531n
Fifth Protocol 163
Fourth Protocol 163
future needs 181–4
GATS Council, powers/practices 102–4, 168–9, 173
investment provisions 626–8, 634, 642
labour provisions 558–9
on preferential rules 498–9
problems 170–84
‘Reference Paper’ 163
retention of status quo 627–8
revised negotiating guidelines 168
on RTAs 64–6, 250, 252, 254–5
on safeguards 163–5, 469, 469n
GATT (General Agreement on Tariffs and Trade, 1947) 2
achievements 55–6
Analytical Index 34
compliance 449, 453
conflicts over 19–20
as contract 55, 68–9, 130
Contracting Parties 82–3, 484, 514;
(p. 783) meetings 46, 270
creation/objectives 14–16, 18, 20, 50, 52, 130, 752
‘definitive’ application, projected 34–5
developing-country provisions 484–5
Director-General, role of 47
dispute settlement 45–50, 55–6, 60, 270–1, 346, 482
problems 48–9
types of cases 47–8
employment provisions 541
environmental provisions 513–4
evolution into WTO system 38–9, 41–2, 52, 55–6, 80–1, 111–12, 126, 270–1, 278, 345–8, 438, 465, 482
exceptions 34–5
Framework Agreements 17–8
General Council 36, 83, 340
global importance 45, 130
health measures 610–11
investment provisions 622–4
(lack of) institutional structure 82
lack of transparency 687–8, 689–90, 692
and liberalization 584
membership, 84n 113
qualifications for 63
negotiations 16–8 (see also names of Rounds)
panels 46–7
problems (‘birth defects’) 31, 48–9, 52, 82–3, 99–100, 247, 271–2
Protocol of Provisional Application (PPA) 31, 34, 39n, 748
Secretariat 35–6, 58, 118
Working Group on Environmental Measures and International Trade (EMIT) 514
Working Group on the Export of Domestically Prohibited Goods and Other Hazardous Substances 514
Working Parties 270
GATT (General Agreement on Tariffs and Trade 1994–9, 42, 62, 97–8, 210–34
on affirmative defences 359
anti-dumping measures 657
application 178–9, 231–4
on balancing 227–8
compared with other Agreements 210, 231–3
competition provisions 648
on consistency requirement 225
Contracting Parties: defined 149–50
disagreements between 250–1
controversial elements 154–5
core principles 154, 161, 756–7
corporate provisions 735–6
dispute settlement 189–90, 352
on emergency measures 151–4
environmental provisions/implications 516–7, 519, 530–2
on financial measures 146–8
health measures 598, 602, 606–16
on import restrictions 131–4
as ‘incomplete contract’ 130
international (legal) status 68–9
on international standards 222
investment provisions 626, 634, 642
on jurisdiction 255–60
labour provisions 544, 545–53
on levels of protection 220
on mutual recognition 223
on national treatment 140–2, 211–13, 243, 756–7
on natural resources 334
on necessity test 142–3, 146, 215–17, 232
on the precautionary principle 226
on preferential rules 498–9
on safeguards 151–4, 262–3, 468–9, 471
on standard of review 414–16, 434
on tariff reduction 134–8
trade instruments 131–8
treatment of developing countries 253–4
violations (alleged) 191–2, 212, 475, 758–9, 762–3, 764
(p. 784) General Council (of WTO) 43, 57, 112, 166, 250, 290–1, 348
composition 85, 100–2
general powers 86–9, 94–5, 97–9, 98n
relationship with specialized organs 115
role in consultation/cooperation 684–5
role in dispute settlement 122, 124–6, 274
role in sanctions 706
special meetings 474
specific powers 99–100
treaty interpretation 339, 340, 386n
Geneva Conference (1947)–33 33, 81–2
Geneva Convention on Import and Export Prohibitions and Licences (1927) 12
Geneva Round (1956) 16, 36n
Genoa Conference (1922) 12
geographical indications (GIs) 190, 198–200, 205, 419
Germany 246–7
competition law 654
tariffs 11
Ghana 575
Global Environmental Organization 536–7
globalization, economic 22–3, 45, 568, 641, 650, 664–5, 750
communications and 674
GMOs (genetically modified organisms), cases involving, 120n 283, 472, 528, 587–8, 606
governance, global 674–5, 678–83
importance of participation 683
government procurement 163, 166
Government Procurement Agreement (1994) 599–60, 715, 715n
Committee 559–60
schedules 560
‘grandfather rights’ 34
Greece (Ancient)
trade between city-States 7
‘Green Room’ diplomacy 40, 113–14
Griller, Stefan 43n
‘Group of 18’ 113
GSPs (Generalized Systems of Preferences) 239, 485–6, 499, 500–1, 565
‘GSP plus’ 566–7
national revisions/conditions 737, 738
reduced effectiveness 487
Guatemala 199
Guidelines for International Operations 657–8
Hague Regulations Concerning the Laws and Customs of War on Land (1907) 716n
Hainsworth, Susan 482
Hamilton, Alexander 11
harmful goods, exclusion of 606–8
harmonization
competition laws 197–8
environmental: downward 511
upward 509, 511
national standards 221–23, 234–5
Havana Charter on Trade and Employment (1948) see ITO (International Trade Organization): draft charter
Havana Conference (1948) 33, 81–2
Hawley-Smoot Act (US 1930) 13, 15n
hazardous products, production/trade 510–1, 512
health care/protection 598–616
appropriate levels of protection 605–6
extraterritorial rights/responsibilities 229–31
and GATT 1994 606–16
international regulation 97, 192–5, 218–20
international standards 600–2
and labour standards 551–2
national levels 380
qualification requirements of measures 610–16
‘right’ to 593
and SPS Agreement 598–606
State responsibility for 598
trade remedy measures 411–14
Heckscher-Ohlin theorem 579n
Higgins, Rosalyn 305, 333
Hippler Bello, Judith 123n
Hoekman, Bernard 175, 482–3, 492n, 497n
Honduras 199
service industries 178–9
(p. 785) Hong Kong 63, 199
Howse, Robert 71, 753n
Hudec, Robert E., 139n 483–4, 527–8
human rights 572–95, 681–2
abuses, as grounds for trade sanctions 586–8, 742–3
compatibility with UN operations 703, 711–12
and corporate responsibility 730, 737–8
economic analysis based on 577–8, 580–1, 595
impact of liberalization on 573, 574, 578–83
institutions 592–4
justifications 581n
and labour standards 737–8
prioritization 241–2, 595
relationship with trade 572–3, 592–4, 595, 736–7
and TRIPS 203–4, 584
in WTO agreements 584–6, 592–3
IAMB (International Advisory and Monitoring Board) 716–7
ICC (International Criminal Court) 315
ICI (Imperial Chemical Industries) 651
ICITO (Interim Commission for the International Trade Organization) 35–6, 82, 82n, 118
ICJ (International Court of Justice) 69, 284n, 285, 358, 456–7, 532, 574–5, 577, 724
Chamber for Environmental Matters 533
ICN (International Competition Network) 665
ICPAC (International Competition Policy Advisory Committee) 665
ICSID (International Centre for Settlement of Investment Disputes) 315, 629, 631n, 639
ICTSD (International Centre for Trade and Sustainable Development) 678
IGOs (inter-governmental organizations) 92
IISD (International Institute for Sustainable Development) 678, 740–1
ILC (International Law Commission)
Draft Articles on State Responsibility 70, 440–2, 444, 450, 451, 452, 454, 457
Draft Articles on the Law of Treaties 321
Draft Articles on the Responsibility of International Organizations 60–1
Fragmentation Study Group, 303n 319, 331, 332–3
ILO (International Labour Organization) 40, 61, 117, 540, 541–2, 593, 685
Administrative Tribunal 119–20
Committee of Experts on the Application of Conventions and Recommendations 552
Constitution 90n, 114n
Convention on Forced Labour 552
Convention on the Worst Forms of Child Labour 563, 563n, 588
Declaration on Fundamental Principles and Rights at Work, 554n, 563, 563n
labour standards, application 550, 551, 551n, 552, 556, 557, 563, 567, 568
as model for WTO 114–15
IMF (International Monetary Fund) 14, 32, 62, 81, 90–1, 90n, 117, 118, 119, 146–50, 174, 708, 716
Balance of Payments Manual 173
IMO (International Maritime Organization) 117
import(s)
exemption from safeguards 259–60
licensing 108
parallel 195–6
process and production methods 229–30, 233–4, 609–10
quotas 11–12
restrictions 131–4, 147, 151–4, 257–8, 389–90, 608–10
labourrelated 549–53
prohibition 625
substitution 487
valuation 15
(p. 786) in dubio mitius, maxim 468
India 2, 113, 199–200, 245, 273n, 484n, 559, 624, 755
conduct of international disputes 148–9, 417–18, 565–6
involvement in (UN-led) sanctions 704n
tariff levels 136
use of dispute settlement system 490
industrial production, environmental impact 510–11
information, access to 681–2
inherent powers 304–15
injury, determination of 392n, 397, 407
intellectual property
defined 187
obligation to protect 584, 591–2
trade in 38, 104–7, 517 see also TRIPS
Inter-American Court of Human Rights 533n, 681–2
Inter-Parliamentary Union 89
Interagency Task Force on Statistics of International Trade in Services 174
interim agreements 250
Interlaken Declaration (2002) 705
International Covenant on Economic, Social and Cultural Rights (ICESCR) 204, 577–8, 591–2
International Finance Conference (1920) 12
international law
application in WTO cases 318–20, 532
environmental 682–3
fragmentation 332–3
of human rights 681–2
rules, primary vs secondary 439
special norms 443–4
of State responsibility 439
and treaty interpretation 326–7
International Office of Epizootics 92, 221, 601
international organizations
decision-making processes 679–80
good governance 678–83
interaction with civil society 673–4, 676–7, 692–3
International Peace Academy 743
International Plant Protection Convention 92, 221, 601
international standards 220–2
absence 221
conflict with national regulations 555, 555n
defined 221
disregard for 410–11
environmental 517–8, 518n, 523, 523n, 536–7
exceeding of 523n, 601–3, 616
health 600–2
labour 550, 551, 551n, 552, 556, 557, 563, 567, 568
International Trade Center 121
investment(s) 620–44
agreements 620–2, 629–40, 739–42 (see also BITs)
dispute settlement 638–40
appeal structure, calls for 640
caseload/frivolous claims 639
costs 639
diversity of rules on 620–1
exceptions 634
future directions 641–3
GATS provisions 626–8
‘like circumstances’ criterion 630–1, 632–4
minimum standard of treatment 634–6, 640
multilateral agreement on (MAI) 628–9, 633
prohibited measures 625
protection 241–2, 620, 640, 641–3
TRIMS Agreement 624–6
and WTO law 620–1, 622–8, 629, 636, 641–3 see also FDI
investors, relationship with State 635–6, 637, 638–9
dispute resolution 739–42
Iran 82
UN sanctions 702–3
Iraq
WTO accession 716n
(p. 787) Coalition Provisional Authority 713–16
Committee of Financial Experts 717n
relevant legal framework for occupation 714–16
UN administrative involvement 713–14, 713n, 714n
UN sanctions 703
Irwin, Douglas 10
ISO (International Office for Standardization) 522
Israel 259–60
Italy
tariffs 11
taxation 763
ITLOS (International Tribunal for the Law of the Sea) 284n, 533n
ITO (International Trade Organization) 2, 14, 35–6, 45, 247
abandonment 33–4, 52, 748
draft charter 31, 33–4, 82, 506n, 533n, 540, 541, 622–3, 647, 655
negotiations 81–2
ITTC (Institute for Training and Technical Cooperation) 687
ITU (International Telecommunications Union) 99
Ivory Coast 707–9, 708n, 712n
Jackson, John H. 70, 72, 83, 123n, 247, 249, 388, 444
Japan 244–5, 290n, 499n, 632
competition law 654–5
conduct of international disputes 400–3, 418, 429–30, 655–7, 660–4
international trade negotiations 40, 113, 624
tariff levels 18, 135–6
trade information service 494
and TRIPS 187, 199
Japan Steel Export Association 660
Jara, Alejandro 166, 173, 176
judges
function 301–2
judicial economy, exercise of 364
judicial process, limits of 461–78
jura novit curia, principle of 322–3
jurisdiction(s) 299–315
choice of 656
compulsory 299–300, 303, 444
conflicts of 303–15
consensual 300–1, 309–10
defined 300n
dialogue between 456
exclusive 299–300, 349, 386
over jurisdiction 306–9, 312–13
over non-WTO violations 553
overlapping 255–6, 642
principles of 300–1
jus cogens norm 543
justice, as basis of economic theory 576–7
Kaldor-Hicks efficiency 580, 580n
Kennedy Round (1963–7) 16–17, 19, 36n, 37, 485
Kenya 199–200
Keynes, John Maynard 32
Kimberley Process 705–6
Klabbers, Jan 337n
Kompetenz-Kompetenz principle see jurisiction: over jurisdiction
Korea 135, 400–3
Kosovo 697, 710–12, 713n
UN Regulations on 711nn
Kuijper, Peter-Jan 58
Kuznets, Simon 510, 510n
Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997) 521n
labelling 556
labour
child 588, 738
conditions, in tariH schedules 548–9
developing countries and 565–7
forced 552, 552n, 585
and GATS 558–9
and GATT 1994 544–53
and GPA 559–60
and PPM regulations 545, 546–7, 555–6
prison 552, 585
and RTAs 544, 561–7
(p. 788) standards 541–2, 546, 568, 737–8
as internal restrictions 564
non-WTO, recognition of 555
private/voluntary arrangements 557
trade restrictions based on 549–53
and TBT Agreement 554–7
and TPRM 560–1
WTO policies/commitments 541–2, 544–5, 562–3, 568–9 see also (individual agreements)
Lacarte, Julio 83, 284n
Lamy, Pascal 86n, 324, 331, 568–9, 682–3, 686
Latin America, tarifflevels 136
Lauder, Ronald 640
Law against Restraint of Competition (Germany 2005) 654
lawyers
before WTO hearings 288–9
on WTO panels 277, 304–5
least-developed countries (LDCs) 488
defined 485n
membership of WTO 482, 485n
dispute settlement 490, 497
preferential schemes 499–500
in service sector, calls for 500n
specific WTO provisions 488
‘least-trade-restrictive’ test 142–6, 219, 250, 516–17, 591, 764
health issues and 605, 612–13
Lebanon 484n
legal determinations 385–6
legal experts, availability to developing countries 293–4
legitimacy, importance to global governance 674–5, 679–81
Lester, Simon 641n
Leutwiler Report (1987) 750
liberalization (of trade) 16, 19
benefits to home economy 580
ethical basis 595
evasion 33n
financial costs 579
human rights costs 573, 574, 578–83, 592–4
human rights links/benefits 572, 595
impact on workforce 542
process 27–8, 176–8
political impact 579
third-country costs 580 see also free trade
Liberia 702–3, 712n
licensing
Agreement 544
compulsory 193–5, 204
imports 108
restrictions 11–12
‘like circumstances’, investment criterion 630–1, 632–4
‘like’ products 414, 430–1, 545, 546–7, 548n, 759–60
competitive relationship, as criterion 760–1
criteria 547, 547n, 558, 762–4
cross-price elasticity 760
environmental implications 525–7
health issues and 607–8, 609–10, 612
human rights and 586–7
importance of context 612
manner of production and 546–8, 558
misapplied to investments 630–1
List, Frederick 9
litigation
costs 491, 496
public/private networks 495 see also dispute settlement
Lomé Convention (1975) (499
London Court of International Arbitration 263–4
Long, Olivier 464
Lowenfeld, Andreas 699
‘mad cow’ crisis 609
Malaysia 136, 662
Mali 575
Malta 139
Malthus, Thomas 508
Mandelson, Peter 521n
Marine Mammal Protection Act (US 1985) 515
marine wildlife, protection 515
market access 544, 627
conditioned 735–7
objections to 737–8
negotiations 26–7
(p. 789) Marrakesh Agreement seeWTO Agreement:
Marrakesh Intergovernmental Conference (1994) 37–8, 91, 126, 271
Declaration on Trade and the Environment 513, 515–16, 528–9
Marshall Plan 100, 246–7
Mattoo, Aaditya 176, 177
Mauritius 561
Mautner, Menachem 753n
Mavroidis, Petros 69, 130
media, representations of WTO disputes 439–40
mediation 466–7
requests for 274, 350n, 493
medicines, access to 192–5 see also pharmaceuticals
Members (of WTO)
conflicts of rights 217
consistency with WTO law, requirement of 224–5, 386, 442–3, 444–6, 457, 544, 562–3, 605
degree of autonomy 210–35, 381, 394–5, 473–7, 582–3
over health systems 598, 600, 601–2, 616
diplomatic representatives 466
discretion 392, 394–5, 435
disparity of environmental/trade views 534–5
economic status 482
interpretive authority 338, 348
investment commitments 627–8
involvement in RTAs 238–9
obligations 137–8, 205, 250, 320, 329–30, 339, 360, 403–9, 409n, 411–12, 443–4, 445–6, 541–2, 556, 584, 600–1
exemptions from 696
panels' deference to 417–20
powers/authority, balance with WTO's 177–8, 382, 410, 435, 752, 753–4
preference for low NGO participation 684–5
procedural requirements 351–3
qualifications 90–1
supervisory role 350–3
technical regulations 554, 554n
third-party participation 362–3, 366, 366n, 369 see also national laws
MERCOSUR (Southern Common Market) 158, 238, 257–60, 264
and GATT/WTO 64–5, 614–16
mergers, control of 654–5
Mexico 199, 242, 244–5, 259–60, 273n, 515n, 637
conduct of international disputes 64, 260–3, 307–13, 553n, 658–9
MFN (most-favoured-nation) treatment 10, 34, 63–4, 161, 169, 187, 196, 213, 243, 247, 254, 485–6, 499, 546, 590, 616, 627, 647, 751, 757
in BITs 630–4, 644
defined 486n, 632
exemptions 201–2, 558
military occupation, law of 713, 716, 716n
Mill, John Stuart 580n
minimum standard of treatment, principle of 634–6, 640
defined 635, 636
enforcement/reparations 636, 636n, 642–3
Ministerial Conference(s) (of WTO) 39–40, 43, 57, 85–6, 92–3, 112, 113, 250, 348, 386n
functions/powers 29, 96–8, 98n
treaty interpretation 339, 340
Cancun (2003) 26, 40–1, 90, 106, 166, 672–3, 676, 680–1, 693
Doha (2001) 40, 96–9, 106, 113, 120, 166, 193, 535
Geneva (1998) 40
Hong Kong (2005) 26, 39, 90, 169, 501, 672
Seattle (1999) 24, 25, 40, 66, 86–7, 113, 245, 672
Singapore (1996) 40, 173, 665
Mongolia 239
Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 514, 514n, 520, 522, 535
(p. 790) Moore, Michael 36n, 89, 116, 493n
morality, protection of 531, 549, 550–1, 585
moratorium, legality of 606
multilateral environmental agreements (MEAs) 82, 523, 531
relationship with WTO agreements 532, 535
multinational corporations 2, 724–45
codes of conduct 557, 733–4
criticisms 727–8, 727n, 734–5
employee relations 729
fiduciary duties 726–7
global impact 730–1
lack of regulation 724–5, 731, 733–5
OECD Guidelines 741–2
(proposed) remedies for wrongdoing 739–45
sanctions against 742–5
self-regulation 557, 731, 733–4
sphere of inL uence 729–30
municipal law 420–1, 434
and compliance 454–7, 458
relationship with WTO law 456, 458
Muti'bre Arrangement (1974) see Agreement on Textiles and Clothing
mutual recognition, requirement of 223–4, 234–5
Myanmar 484n, 550
NAFTA (North American Free Trade Agreement) 64, 158, 238, 241, 242
environmental provisions 523, 535
investment provisions 620, 621, 629, 630–1, 632–3, 634–5, 637, 638–9, 643, 739
labour provisions 562, 564
rules of origin 244, 260n
side agreements 241–2
violations 553, 564
NAMA (non-agricultural market access) 26–7, 136–8, 155
national emergency, states of 202n
‘national exhaustion’ 195–6
national laws/legislatures 210–35
competition law 649–52
consistency, requirement of 224–5, 386, 422n, 442–3, 444–6
corporate regulation 724, 731–3
diversity 745
discretion 394–5, 435
duty to explain 405–9, 427–8
emergency measures 151–4
environmental 512–13, 522–4 (see also environmental measures)
extraterritorial authority 228–31, 233–4
harmonization 220–2, 234–5
impact of WTO rulings 123, 220, 389–90
investigations initiated by 394–5
legal processes, influence on review system 384, 388–90, 409–10
mutual recognition 222–3, 234–5
panels' deference to 390–1, 394–6, 397, 398–9, 403, 416–20
precautionary action 225–6
procedural obligations 403–4, 411–12
relationship with WTO law 385–6, 389–90
representations on own legal
system 417–20
standard of review applicable to 416–21
substantive obligations 404–9
as trier of first impression (in cases of fact) 390–1, 394–6, 399, 409–10
national treatment principle 138–42, 154, 161, 187, 196, 211–4, 255, 627, 647, 666, 753, 758–9
in BITs 630–4, 644
defined 632
and health measures 606–8
and human rights 586n
and labour standards 558–60
panel/Appellate interpretations 760–72
natural persons, movement of 1623n
natural resources
defined 334, 475–6, 516, 516n
as focus of economic theory 575–6
sovereignty over 623
necessity test 142–6, 154–5, 215–18, 227–8, 232, 395, 516–17, 589n, 598–9
context-specificity 611–12
(p. 791) and health issues 605, 607–8, 611–15, 616
for human rights-related measures 589
for labour-related measures 550–1, 556
sanctions and 704–5
Netherlands 531
New Zealand 199, 273n, 658
NGOs (non-governmental organizations)
activities in trade arena 677–8, 685n, 712n
criticisms 676, 690
diversity 677
environmental 507, 533, 533n, 677–8
labour-related 557
legitimacy 676
relations with WTO 66–7, 92–3, 99n, 124, 672–3, 675–7, 680–1, 683–6, 691
guidelines on 684–5
objections to 676
participation in decisionmaking process 686
submissions to panels/Appellate Body 364, 369, 473, 533, 689, 691
transnational networks 674, 675–6
Nicaragua 199, 574, 632, 701
Nicolaides, Kalypso 71, 158–60, 171
non-discrimination, principle of 211–14, 243, 666, 708n
in BITs 630–4
and human rights 586–8, 712
and labour standards 546–8, 558, 559–60
non-reciprocity, principle of 486
non-tariff barriers (NTBs) 17, 28, 34, 36–7, 506
health measures as 599
non ultra petita, principle of 300–1
Nordstrom, Hakan 119n, 120n, 491n
normative economics, theory based on 575–6
Norway 273n, 499n
Notice of Appeal, filing of 365, 368, 369
‘objective assessment’ criterion 382–3, 433–4
observer status, rules of 92–3
OECD (Organization for Economic Cooperation and Development) 22–3, 81, 100, 100n, 121, 174, 665, 733–4
Declaration on International and Multinational Enterprises (1976) 632
failed investment initiative 628–9, 633
Guidelines for Multinational Corporations (2000) 2
tariff levels 136
OEEC (Organization for European Economic Co-operation) 100, 100n
oil trade 179
open hearings 295–6, 363
Ostry, Sylvia 23
OTC (Organization for Trade Cooperation) 36
Ottawa agreements 13
Ouagadougou Agreement (2007) 708
OWINFS (Our World Is Not for Sale, NGO) 677
Oxfam International 678, 730
Pakistan 484n
Palmeter, David 69, 386, 446
Panagariya, Arvind 243
Panama 350n
Panama Declaration (1995) 515n
panels/panellists (WTO)
Appellate Body's review of findings 421–33
applicable law 315–20
application of law to factual findings 429–33
caseload 277, 295–6
composition 276, 355, 533
duty to explain 427–8
establishment 353–5
evidentiary issues 359–61, 412–13
factual determinations 388–421, 423–8
fees 277n
function 305, 432
inherent powers 306–15
institutional role 432
judicial economy 364
jurisdiction 299–300, 301, 302, 306–15
legal determinations 385–8, 422–3
legal status 277–8
margin of discretion 361, 424
methodology see separate main heading
for multiple challenges 356
and national treatment 760–66
(p. 792) nationality 277, 279–80, 287
open hearings 363
preliminary rulings 357–8
private counsel, representation before 364
proceedings 353–64
proposed reforms 279
qualifications 277
relationship with national authorities 394–6, 397, 398–9
relationship with other WTO bodies 381n
reports: adoption 121–2, 123, 2723n, 306, 350–1
binding status 448–9
drafting 356–7
implementation 371–5, 448–9, 496
interim 356
length 282, 282n
restrictions 396–7
roster approach (proposed) 279–80, 358n
selection 275, 275n, 276–7, 276n, 279–80, 355
standards of review 361–2, 381, 382–421
deference to national authorities 389–90, 394–6, 397, 398–9, 403, 409–10, 416–20
influence of specific obligations 403–9
submissions to 356, 363
third parties, rights of 362–3
time frames 278–9, 278n, 357, 357n, 358, 392–3, 492
transparency 363–4
and treaty interpretation 322–3, 341–2, 468
and TRIMS claims 625–6
working procedures 356
Panitchpakdi, Supachai 86n, 93, 116, 350
Paraguay 199
parallelism 259, 262
Paris Convention for the Protection of Industrial Property (1883) 106–7
Parliamentary Conference on the WTO (2003) 89–90
parliamentary organs (of international organizations) 89
participation 683–90
in dispute settlement procedure 688–90
importance in global system 679–81
in WTO negotiations 687–8
Patent and Industrial Design Law (Iraq) 715–16
patents, protection 190–1, 192, 591n, 592
pharmaceutical 192–3, 598
Pauwelyn, Joost 69, 152–3, 318–9, 452–3
PCA (Permanent Court of Arbitration) 315
Pelly Amendment (US 1978) 520, 520n
periodicals, import 179
perishable goods, disputes relating to 278n
Peru 222, 411n
agreements with US 563, 632
Petersmann, Ernst-Ulrich 529, 753n
pharmaceutical products 97
patents 192–3, 598
Philippines 274, 350n, 493
Plato 8
Poland 499n
politics
distinguished from law 325–6
influence on courts 122
role in WTO dispute settlement 440
pollution 510–1
Pomfret, Richard 243
Post, Harry 704
post-conflict situations
economic reconstruction 707–10, 719–20
extent of UN involvement 706–7
trade law and 697–8
transitional administration 710–13, 719–20
powers, attributed vs implied 109–1
PPM (process and production) methods 229–30, 233–4
environmental measures and 525–7, 536
labour standards and 545, 546–7, 555–6, 558, 568
Pre-Shipment Inspection Agreement 107–8
precautionary principle 225–6, 527, 527n, 604
preferential rules (for developing countries) 483–4, 498–502, 736–7
(p. 793) calls for regulation 499–500
non-enforceability 483–4, 498–9, 502
preferential trade agreements (PTAs) 183
prison labour 552
private counsel see counsel
proof, burden of see burden of proof
proportionality principle 142–3, 441, 452
protectionism 11, 13, 487,487n., 554n., 737–8
accusations of 526
environmental 521, 526
negative impact 574, 575
and RTAs 242
States' right to 574–5
Pulkowski, Dirk 441
Punta del Este Ministerial Declaration (1986) 91, 624
‘Quad’ group (at Uruguay Round) 40, 113–14
‘race to the bottom’ 511, 511n.
Rappard, William 12
Reagan, Ronald 22
reasonableness, criterion of 380, 387n., 398–9, 402
Reciprocal Trade Agreements Act (US 1947), 14–15
reciprocity, requirement of 419 see also non-reciprocity
recycling 525
Regan, Donald 143
regional trade agreements (RTAs) 63–6, 158–9, 238–64, 755–6
benefits 241–2, 246, 264, 755
compatibility with global system 246–53, 264, 562–3
conflicts with WTO 255–64
defined 239–40, 248
disadvantages 243–6, 264
discrimination 243, 616
dispute settlement 260–4
environmental provisions 535 n
impact on global system 244
inequality of bargaining power 245–6
internal restrictions 562–3, 564
labour provisions/implications 544, 561–7
negotiating costs 244–6
preferential tariffs 501
as preparation for global negotiations 242
procedural requirements 251–3
proliferation 238–9, 252–3, 255, 264, 487, 561
requirement to cover all trade sectors 248–51, 255
rules of origin 243–4, 755
substantive requirements 248–51
regionalism
benefits 241–2
costs 243–6
remand, power of 370–1
remedies see trade remedies
reports see Appellate Body
panels
restitution, as remedy 451
retaliation, right of 496–7
Ricardo, David 8–9, 580
Rio Conference/Declaration on Environment and Development (1992) 509, 514, 527n., 593–4
risk assessment 411–12, 602–4
defined 603
Roessler, Frieder 501
Rome, Treaty of 664
Rothnie, Warwick 195
Roy, Martin 176
Ruggie, John 14n
Ruggiero, Renato 86n
Russia, 499n, 629
Rwanda 195
Sacerdoti, Giorgio, 339n, 351
SACU (South African Customs Union) 244
safeguards 104, 109, 468–9, 659
Committee on 109
emergency, national 151–4
exclusions 259–60
in services sector 163–5
standard of review 389, 395–6
(p. 794) Safeguards Agreement 107, 151–4, 155, 258–60, 262–3, 384, 395–7, 404, 468–9, 471, 474, 476, 648
labour provisions 557, 557n
sanctions
corporate 742–5
human rights-based 586–8
impact on civilian population 703
impact on third States 703–4
impact on trading system 452–3
‘smart’ 742–5
UN-imposed 697–8, 701–6, 744
unilateral 20, 514, 700–1, 704
Saudi Arabia, accession to WTO 86n
Sauvé, Pierre 162
Schott, Jeffrey 241
Schwartz, Warren F. 446–7
scientific evidence
as basis for environmental measures 518, 527–8
as basis for SPS measures 218–20
for health measures 602–4
SCM (Subsidies and Countervailing Measures) Agreement (1994) 101, 108–9, 110–1, 189, 191, 291, 292n., 349, 352, 359, 449, 491, 515n., 532, 658
Committee 110–1
labour provisions 557
and standard of review 395–7, 400, 403, 431–2
Secretariat (of WTO) 27, 43, 58, 81, 89, 100, 108, 118–21, 126–7, 164, 165, 173–4, 238–9, 252, 529
criticisms 466n
headquarters 119, 540
legal divisions 293
role in dispute settlement 275, 276n., 293–4, 466–7, 492
security exceptions 696, 699–701, 704–6, 714–5, 718
Sen, Amartya 573
‘September 11’ attacks 53
sequencing 294–5, 374
services, trade in 19, 38, 104, 500n., 517
‘domestic regulation’ 163, 166–7
investment and 626–8
lack of shared ‘scripts’ 175–8
need for increased research/ investment 181–2, 183–4
overlap with products 178–80
range of sectors 161
regulation 163–7
and RTAs 254–5
shortage of information on 171–5, 181–4
attempts to rectify 174–5
statistics 173–4
Uruguay discussions 159–62, 167, 170, 172–3, 177 see also GATS
Shaffer, Gregory 491n , 494, 497n.
shareholders, corporate
active involvement 734–5
primacy, doctrine of 726–7
criticisms 727–8
Sherman Antitrust Act (US 1890) 650–1, 658, 662
Sierra Leone 702–3, 709–10, 709n.
Simma, Bruno 441
Singapore Declaration 541
‘Singapore issue’ 197–8
small arms trade 698, 717–19
measures for control 717–18
SMEs (small and medium-sized enterprises) 560
Smith, Adam 8, 32
social security benefits 558–9, 580–1
South Africa 40n, 244
Southern Rhodesia, sanctions against 703
sovereignty, national
over natural resources 623
relationship with international obligations 34, 52–3, 234–5, 381, 471–3, 477, 522
right to expropriation 636–7
Soviet Union, collapse of 21–2, 648
‘Spaghetti Bowl’ problem 244
Spain 632
Spak, Gregory 386
special and differential treatment (S&DT) 484–8, 502
benefits 503
criticisms 486–7, 502–3
demands for 484–6
(p. 795) SPS (Sanitary and Phytosanitary Measures) Agreement (1994) 92, 97–8, 108–9, 111, 146, 154, 210–34, 331, 334–5, 384, 472, 491, 555, 585, 589, 591
application 231–4
Committee 92, 111, 465
compared with other Agreements 211, 231–2, 233–4
definition of SPS measures 230–1, 233–4, 599
dispute settlement 275, 303–4
environmental implications 515n, 517–18, 523, 523n., 527, 527n., 533n.
health provisions/implications 598–606, 615–16
on necessity test 218, 232
preference for international standards 600–2
on scientific basis 219–20
trade remedy measures 411–14, 415, 416, 434
Sri Lanka 484n
Standards Code 515n
standards of living 541
environmental impact 509
standard(s) of review 291, 361–2, 379–435
Appellate Body's contribution 383n, 395–6, 399, 401–2, 406–7, 421–33
application to domestic law 416–21
‘check list’ approach 403–4
consistency 395–6
defined 379–80
differing approaches to 428, 432, 433, 434–5
duty to explain 405–9
evolving nature 435
factual questions 388–421
flexibility of concept 380–1
function 381
GATT 1994 and 414–6, 434
influence of national processes 384, 388–90
influence of particular obligation 403–9
lack of standardised approach 433
legal questions 385–8
mixed factual/legal questions 391–2
‘objective assessment’ criterion 382–3, 433–4
procedural requirements 411–12
special cases 3823n, 386n., 387–8, 391, 394–6, 397n.
and trade remedy agreements 390–414, 434 see also de novo review: national laws; panels
States
consent to jurisdiction 309–10
contingency measures 146–54, 202n.
dissociation from others' policies 521
environmental powers/policies 512, 525
environmental/trade responsibilities 537–8
expropriation rights 636–7
healthcare rights/responsibilities 598, 607–8
human rights obligations 574, 577
impact of trade policies 574
investment obligations 630–1
investment rules (domestic) 620, 739
regulatory powers 583–92
relations with NGOs 676–7
relationship with dispute settlement system 471–2, 477
responsibility, international law of 439, 440–2, 754
social welfare programmes 580–1
standing, propsed reforms 740–2
Steger, Debra 83, 482
Stockholm Conference/Declaration on the Human Environment (1972) 514
Stoler, Andrew 369–70
Stolper-Samuelson theorem 579n
subsidies 163, 165–6, 472
agricultural 26–7, 513, 575–6
fisheries 688
illegal 449–50, 532
sugar, export 260–1
Summers, Lawrence 511n
Sunset Policy Bulletin (US) 424–5
(p. 796) sustainable development, concept of 515–16, 678, 728
Sutherland Report (2004) 80, 114, 462n., 748, 750
Sweden 624
Switzerland 499n
agreement with WTO Secretariat 119
tariff formula 26, 137
Sykes, Alan O. 446–7
Syria 484n
System of National Accounts 1993 173
Taiwan 335
tariffs
‘bindings’ 33, 33n., 42, 582
‘concession’ 135
labour-related 548–9
negotiation 17, 26
origins 7–8
preferential 180, 183, 485–6, 501, 736–7 (see also MFN)
rates: bound vs applied 136
national variations 135–6
reduction 16, 17–18, 24, 36, 134–8, 487, 506
regulation 14–16, 562–3
special rates 244
Swiss formula 26, 137, 137n.
tiers 26
taxation 450–1
GATT provisions 757–8
illegal 451
panel/Appellate Body reports 760–61, 762, 763, 764
revenues from 579
TBT (Technical Barriers to Trade) Agreement (1979) 83, 97–8, 108–9, 110, 146, 154, 210–34, 331, 585, 589, 591
application 231–4, 410n.
compared with other Agreements 210, 232–4, 412
competition provisions 648, 649
environmental provisions 518n, 523, 523n.
labour provisions/implications 544, 545, 546, 554–7, 568
trade remedy measures 409–11, 412, 413–14, 416, 434
technical regulation(s) 554, 554n., 556
defined 230
technology transfer 197, 625
telecommunications 658–9
television, import rules 244
Telmex 658–9
territoriality principle 229–31, 233–4
textiles
trade liberalization 20–1
Thailand 274, 290n., 350n., 462n., 493, 610, 612–3
third parties, rights of 362–3
additional 363
Thucydides 7
timber products, export 263–4
Tokyo Round (1973–9) 16–9, 21, 35, 36n., 47, 107, 113, 270, 486
Codes 38, 83, 108, 584
focus on NTBs 17, 28, 36–7
side agreements 42, 48, 49
tolls 7
Torquay Round (1951) 16, 36n.
Trachtman, Joel P. 69, 71–2
trade
arguments for 8–9
avoidance of restrictions, as principle 142–6
defined 6
modes of 160–1
origins 6–7
relationship with environment see environment; environmental measures
relationship with human rights see human rights
restrictions
labour-related 549–53, 564–7
States' right to impose 574–5, 576n., 582, 584–5
right to 573 see also free trade; liberalization
Trade Negotiations Committee (TNC) 81, 91
(p. 797) Trade-Related Aspects of Environmental Protection, proposed agreement on 536
trade remedies 442, 452–4, 544, 557
applicability 582–3
and competition policy 659–64
conditional access 739–40
repayment as 451–2
transboundary harm (environmental) 520–1, 532
transparency 161, 295–6, 534–5, 666, 683–90
civil society's demands for 672, 692
importance to global governance 672, 679–81, 687
mechanisms 252, 264, 565
and panel/Appellate Body hearings 363–4, 369–70, 691–2
and RTAs 565
in UN operations 712n, 716–17
in WTO procedures 687–8
treaties
ambiguity 467–71, 477
treaty interpretation 51, 299, 321–41
Appellate Body's contribution 291–2, 324–5, 326–30, 333–4
and applicable law 315–17
authoritative: requests for 338–9, 338n.
vs judicial 338–41
consistency 324–5, 330–6
contextualism 326–30
DSU and 322–6, 342
and effectiveness principle 328–30
general principles 316–17, 321–2
principle of harmonious interpretation 330–6, 544
as holistic process 321–2
and international law 326–7
means of 326–30
special (WTO-specific) principles 336–8
TREMS (Trade-Related Environment Measures) 512, 519, 521
TRIMS (Trade-Related Investment Measures) Agreement (1994) 87, 99, 108, 110, 624–6
competition provisions 648–9
panels' reluctance to engage with 625–6
TRIPS (Trade-Related Intellectual Property Rights) agreement (1994) 24–5, 42, 57–8, 62–3, 99, 187–205, 513, 515n., 536, 547n., 584, 591n., 751, 753
amendments 194–5
competition provisions 648
Council 104–7, 419
specific powers 105–6
criticisms 187–9
dispute settlement 189–92, 196
enforcement 455–6
exceptions 193
free trade areas and 201–3
and health issues 97, 192–5, 598
human rights and 203–4, 591–2, 595
interpretation 337n, 338n.
objectives 187, 188
outstanding issues 195–200, 535n.
scope 187
‘TRIPS-plus’ 201–3
Tuna/Dolphin cases 515, 521n., 524–5, 526
Turkey
appearances before GATT/WTO 64, 256–7
customs union 256–7
TWN (Third World Network) 677
UNCLOS (UN Convention on the Law of the Sea) 315
Understanding on Rules and Procedures Governing the Settlement of Disputes see DSU
United Kingdom
corporate law 732
domestic case law 651–2
role in world trade 9–10
tariff policies 13
United Nations (UN) 2, 89, 696–720
Administrative Committee on Cooperation (ACC) 62
Agenda for Peace 704n
arms trade regulation 717–19
(p. 798) Central Product Classification 174
changes in practice 697–8
Commission on International Trade Law (UNCITRAL) 685
Committee on Economic, Social and Cultural Rights 204, 577
Conference on Trade and Development (UNCTAD) 62, 121, 174, 485–6, 507, 507n., 565, 629n., 685, 728, 733, 740
Economic and Social Council (ECOSOC) 93, 685, 744–5
economic reconstruction operations 708–9
Educational, Scientific and Cultural Organization (UNESCO) 117
Environment Programme (UNEP) 686, 688
General Assembly 623, 705, 709
Global Compact 730
High Commissioner for Human Rights 203, 594
Human Rights Committee 711n
Industrial Development Organization (UNIDO) 62
International Instrument to Enable States to Identify and Trace Illicit Small Arms and Light Weapons 717
Mission in Ivory Coast (MINUCI) 707
Mission in Kosovo (UNMIK) 710–11, 713n.
objectives 572–3
Office of Legal AH airs (OLA) 711–12
Operation in Ivory Coast (UNOCI) 707–8
Peacebuilding Commission 698, 706, 709–10
peacekeeping operations 706–10
Programme of Action to Prevent, Combat and Eradicate the Illicit Trade of Small Arms and Light Weapons 717–18
Protocol Against the Illicit Manufacturing of and TraN cking in Firearms 717–19
Regulations on Kosovo 711nn
relationship with international trade law 696–8, 701–17
relationship with WTO 62–3
Resolution 55/56 (2000) 705–6
Resolution on Permanent Sovereignty over Natural Resources (1962) 623
sanctions 697–8, 701–6, 744
Security Council 523, 697, 701, 702, 709, 743, 744
Resolutions 706–8, 710–11, 712n., 713–4, 714n., 715–16
specialized agencies 62, 72, 73–4, 73n., 114, 119
Statistics Division 174
Sub-Commission on Human Rights 203, 581, 590
transitional administrations 710–17
United States 499n
Antitrust Laws 650–2, 658, 660–4
competition law 650–2, 654–5, 658
conduct of international disputes 90, 101, 190–1, 260–4, 272n., 295–6, 450–1, 462n., 531n., 606, 640, 653, 655–8, 660–4, 691–2
frequency of appearances 287
corporate law 732–3, 737, 738
criticisms of WTO/dispute settlement process 281–2
demography 39
Department of Commerce 424–5, 662–3
domestic case law 650–2
environmental legislation 515, 520n.
international trade negotiations 16–17, 35, 40, 83–4, 113, 246–7, 477, 515n., 624, 633
labour questions 561
Model BIT (bilateral investment treaty) 621–2, 632, 636
relationship with WTO 83–4, 89, 111, 121–2, 124, 417, 474
safeguard measures 262–3
tariff rates/policy 11, 18, 135–6, 244
tax regime 450–1
trade agreements 202–3, 244–5, 259–60, 663–4, 740 (see also NAFTA)
trade information service 494
trade legislation 13, 14–5, 34, 203, 499, 522
trade sanctions 20, 514, 515, 521n., 524–5, 526, 533
(p. 799) treaty participation/provisions 334n, 335n., 563, 629, 632, 635, 637
nineteenthcentury 631–2
and TRIPS 187, 199, 202–3
Universal Declaration on Human Rights (1948) 7, 591–2, 730
Uruguay 46–7
Uruguay Round (1986–96) 1, 16–7, 18–23, 36n., 37–41, 44, 117, 131, 152, 201, 477, 559, 641, 680, 750
achievements 20–1, 23
aftermath 162–3, 167, 172, 184, 254
background 18–20
Brussels Ministerial Meeting (1990) 25
creation of WTO 38–9, 41–3, 81, 91, 107
dispute settlement provisions 49–50, 271, 280, 375, 387n., 423, 482
economic/policy context 21–3
environmental measures 515–16
and intellectual property 188, 591
role of developing countries 24–5, 487–8, 692
and RTAs 242, 248, 251
and services 159–62, 167, 170, 172–3, 177, 184, 626–7
‘single package’ approach 38, 749
and TRIMS Agreement 625, 626
US-Central American Free Trade Agreement 740
US-Japan Semiconductor Agreement (1986) 663–4
Van den Bossche, Peter 93n
Venezuela 272n
Vernon, Raymond, Prof. 21
Vienna Convention of the Law of Treaties (1969) 52, 68, 291–2, 438–9
and standards of review 385–6, 387–8, 433
and treaty interpretation 316–17, 323–4, 326–7, 331–7
Vienna Convention on Consular Relations (1963) 456
Viner, Jacob 243
voluntary export restraints (VERs) 487, 659–61
relationship with antitrust law 660–1
waivers 59, 86, 86n., 97, 501n., 706
and intellectual property 104, 105–6, 194–5, 202n.
and MFN treatment 485–6
Warwick Commission/Report (2007) 750, 752
Watal, Jayashree 196
Weekes, John 292n
Weeramantry, Judge 333n
‘weighing and balancing’, need for 142–6
Whalley, John 488n
WHO (World Health Organization) 88, 117, 555, 593, 599
WIPO (World Intellectual Property Organization) 62–3, 189, 200–1, 685
membership 200
Working Group on the Interaction between Trade and Competition Policy 197–8, 661, 665
Working Group on Trade and Investment 641
Working Party on Domestic Regulation (WPDR) 167
Working Party on GATS Rules (WPGR) 163–7
Working Party on Professional Services (WPPS) 167
World Bank 14, 32, 58, 62, 81, 90–1, 90n., 118–9, 150, 708, 716, 734
World Business Council for Sustainable Development 728
World Customs Organization 445
World Economic Conference (1927) 12
World Heritage Convention (1972) 525
world trading system
defined 6, 27
history 31–53
WTO (World Trade Organization)
accessions 42–3, 86, 86n., 97, 485n., 708n., 709n.
achievements 51–3
appointment of officials 89
balance of powers 94
capacity-building 686–7
civil participation in 683–90
Committees 465 (see also individual names/Agreements)
compared with other international organizations 73–5, 80–1, 116–17, 150
compatibility of RTAs with 247–53
and competition law/policy: appropriateness as forum 655
provisions in agreements 648–9
conflicting norms 155, 210
conflicts with RTAs 255–64
constitutionalism 70–4, 752–4
Consultative Board 121n, 324n., 341, 490
contribution to international law 67–9, 289
cooperation with other international organizations 147–8, 150, 155
core values 756–70
covered agreements 97–8, 107–9, 329n.
conflicts between 549, 585, 615, 642, 766
harmonious interpretation 330–6, 544
lacunae 241, 441–2 (see also individual names)
creation 23, 31, 37–8, 50, 55, 692, 748
criticisms 40–1, 74–5, 594, 672, 730, 749
decision-making procedures 44, 51, 59–60, 80–1, 88n., 94–5, 96, 113, 462n.
NGO participation 686
developing-country provisions 96–7, 137–8, 253–4, 293–4, 359, 487–8, 496
Director-General see separate main heading
dispute settlement see separate main heading
and the environment 529–37
adjudicative approach 530–4
measures 515–18
negotiated solutions 534–7
(perceived) responsibilities 529–30
(potential)conflicts 512
executive organs see non-plenary organs below
nances 99–100, 120
functions 58–60
General Council see separate main heading
increasing legality 438–9, 464–5, 482, 489
institutional structure 43–4, 84–93, 87n., 95, 111–12, 274–94, 684–6
internal tensions 40–1, 50–1, 124–6, 155
as international organization 81–4
investment rules 620–1, 622–8, 629, 636, 641–3
jurisdiction 299–315, 410
languages 367, 395n.
law 751
(alleged) corporate bias 730
breaches 440–2
distinguished from other treaty law 72–3, 317–19
legality of UN actions under 698, 718
limited enforceability 471–2, 498–9
relationship with municipal law 456, 458
self-executing 455
Legal Affairs Division 275n, 293
as legal institution 56–61
legal personality 60–1
legislative authority 220–2
limitations 126–7
of judicial process see separate main heading
Ministerial Conferences see separate main heading
negotiation procedures 687–8
non-plenary organs, absence of 88–9, 90–1, 112–15, 117–18
objectives 18, 24, 55, 57, 84–5, 330, 447, 453–4, 647
duality of 462–4
observers 92
organization 24–5, 27, 57–8, 80–1
(p. 801) overlapping powers of organs 111–12
parliamentary organ, absence of 89
powers of amendment 59, 105
Public Symposium 686
relations with NGOs 66–7
relationship with other international organizations 61–6, 147–8, 150, 155, 698, 715–16, 718–9
role in international system 1, 51–2, 55–75
Rules Division 293
scope 529
Secretariat see separate main heading
and services trade 174–6, 184
Single Undertaking 544, 749
specialized Councils 43, 57–8, 86–7, 95, 99
standard of review see separate main heading
Trade in Services Division 293
Trade Negotiations Committee (TNC) 81, 91, 94, 168–9
Trade Policy Review Mechanism/Board (TPRM/TPRB) 42, 43–4, 57, 86, 100, 175, 467n., 560–1
trade-related technical assistance 121
transparency 683–90
treaty structure 41–3, 55–7, 73–4
voting system/regulations 42–4, 59, 112, 115n., 290n., 306, 386n., 474 (see also consensus)
WWF (World Wildlife Fund) 67, 677–8, 688
Wyndham-White, Sir Eric 17, 46
Yerxa, Rufus 274
Yugoslavia 624
Zambia 500n
zeroing 469–71, 474
Zimbabwe 484n see also Southern Rhodesia (p. 802)

Notes:

(1) WJ Davey, ‘The WTO Dispute Settlement System: The First Decade’ 2005 Journal of International Economic Law 8(1) 17.

(1) It is true that the EEC Treaty governed trade in services from the outset, but, as Eeckhout has noted, the ‘freedom to provide services [is] subsidiary to the other basic freedoms of the internal market’, perhaps in part because when the treaty was drafted ‘trade in services’ had not been conceptualized: P Eeckhout, ‘Constitutional Concepts for Free Trade in Services’ in G de Búrca and J Scott (eds), The EU and the WTO: Legal and Constitutional Issues (Oxford: Hart, 2001), at 212. In addition, the Canada-US Free Trade Agreement, concluded in 1989, has been described as a ‘precursor’ to the current services RTAs: M Roy, J Marchetti, and H Lim, ‘Services Liberalization in the New Generation of Preferential Trade Agreements: How Much Further than the GATS?’ WTO Staff Working Paper ERSD-2006–07 (September 2006), at 〈http://www.wto.org/english/rese/resere/ersd200607e.pdf〉 (last visited 10 March 2008).

(1) The Charter of the never-formed International Trade Organization (ITO) included an exception for measures ‘taken in pursuance of any intergovernmental agreement which relates solely to the conservation of fisheries resources, migratory birds, or wild animals …’. Havana Charter for an International Trade Organization, done at Havana, 24 March 1948, UN Doc. E/Conf. 2/78 (not inforce), Arts 45(1) (a) (x) and 70(1) (d).

(1) Reflecting this lineage, the Preamble of the WTO Agreement, following Art 1 ITO Charter and the Preamble of the GATT 1947, contains most of the wording of Article 55(a) UN Charter.

(2) Art 1.1 DSU. A court or tribunal has jurisdiction ‘whenever it has been regularly seised and whenever it has not been shown, on some other ground, that it lacks jurisdiction or that the claim is inadmissible’. ICJ, Nottebohm Case (Liechtenstein v Guatemala) (Preliminary Objection), 18 November 1953, ICJ Reports (1953) 111, at 122. The competence of a court or tribunal is broader and ‘includes both jurisdiction and the element of the propriety of the Court's exercising its jurisdiction in the circumstances of the concrete case’. S Rosenne, The Law and Practice of the International Court 1920–1996, Vol I, 3rd edn (The Hague: Martinus Nijhoff, 1997), at 536.

(2) The documents are mostly part of the UN document series labeled EPCT, Preparatory Committee of the UN Conference on Trade and Employment. See Jackson, World Trade and the Law of GATT, above fn 1, at app E, 901–12, for an explanation and list of the document series.

(3) The standard of review also defines the relationship between panels and other bodies within the WTO system that, at least theoretically, also exercise a sort of ‘quasi-judicial’ function. These other bodies are, for instance, the Committee on Regional Trade Agreements and the Committee on Balance of Payments Restrictions (and formerly also the now defunct Textiles Monitoring Body). This particular issue, however, remains outside the scope of this chapter. On this topic, see for instance, Oesch, above fn 2, at 33–40.

(4) Appellate Body Report, EC-Hormones, at para 115 (emphasis added). The Appellate Body has also said that standard of review ‘goes to the very core of the integrity of the WTO dispute settlement process itself’. Appellate Body Report, EC-Poultry, at para 133.

(4) See JH Jackson, The World Trading System, Law and Policy of International Economic Relations (Cambridge, Mass.: MIT Press, 1997), at 36–37. See also Footer, above fn 1, at 12–18. See also chapters 2, 3, and 4 of this Handbook.

(4) Esty, above fn 3, at 36.

(6) RW Hamilton, The Law of Corporations: In a Nutshell, 5th edn (St Paul, Minn: West, 2000), at 447 (‘A director owes a duty to the corporation to exercise proper care in managing the corporation's affairs’).

(7) See also C-D Ehlermann and N Lockhart, ‘Standard of Review in WTO Law’ 2004 Journal of International Economic Law 7(3) 491, at 495; Oesch, above fn 2, at 9.

(7) The most successful articulation of the law and culture nexus and its application in explaining a living legal system is, to my mind, the Israeli jurist M Mautner in his Law and Culture (Ramat Gan: Bar-Ilan University Press, 2008). See also, P Kahn, The Cultural Study of Law (Chicago: University of Chicago Press, 1999); HG Gadamar, Truth and Method (London: Sheed and Ward, 1979); C Geertz, The Interpretation of Culture (Jackson, TN: Basic Books, 1977); JG Herder, On Social and Political Culture (Cambrige: Cambridge University Press, 1969).

(8) The fact that the very first decision rendered by the WTO Appellate Body was in favour of two developing countries (Venezuela and Brazil) that had challenged a US measure made it difficult to allege otherwise. Appellate Body Report, US – Gasoline.

(8) Ibid, Chapters 9 and 10.

(10) The dates and locations are as follows: 1947 at Geneva, 1949 at Annecy, 1951 at Torquay, 1956 at Geneva, 1960–1961 at Geneva (Dillon Round), 1964–1967 at Geneva (Kennedy Round), and 1973–1979 at Geneva (Tokyo Round).

(10) Some of the problems of WTO decision-making have been explored in the so-called Sutherland Report, which was prepared by a group of leading international trade experts appointed by the WTO DG. Consultative Board, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (Geneva: WTO, 2004), at 61–72.

(10) Given the enormous growth in membership of developing countries in the GATT 1947 prior to the creation of the WTO, it is unclear as to why many developing countries held this view. They were bound to have large numbers not only in the plenary organs, but also in any non-plenary organ that was likely to be based, at least in part, on the criterion of geographical representation.

(11) See B Wilson, ‘Compliance By WTO Members With Adverse WTO Dispute Settlement Rulings’ in ME Janow, V Donaldson, and A Yanovich (eds), The WTO: Governance, Dispute Settlement & Developing Countries (Huntington, New York: Juris Publishing, Inc., 2008) 777.

(12) See in particular the debate between JH Bello, ‘The WTO Dispute Settlement Understanding: Less is More’ 1996 American Journal of International Law 90(3) 416–18 and JH Jackson, ‘International Law Status of WTO Dispute Settlement Reports: Obligation to Comply or Option to “Buy Out”?’ 2004 American Journal of International Law 98(1) 109.

(13) Appellate Body Report, US-Gasoline, at 17; Appellate Body Report, Japan-Alcoholic Beverages II, at 104.

(13) The seminal work on this subject is R Gardner, Sterling-Dollar Diplomacy (Oxford: Oxford University Press, 1956). The compromise between the American and British positions has been labeled ‘embedded liberalism’ in J Ruggie, ‘International regimes, transactions, and change: embedded liberalism in the post-war economic order’ 1982 International Organization 36(2) 379.

(13) Art XVIII, sections A, B, and C GATT 1947.

(14) DI Stern et al., ‘Economic Growth and Environmental Degradation: The Environmental Kuznets Curve and Sustainable Development’ 1996 World Development 24(7) 1151, at 1152; S Kuznets, ‘Economic Growth and Income Inequality’ 1955 American Economic Review 45(1) 1. Kuznets did not link economic development to environmental degradation, but rather to reduced inequalities in income distribution.

(14) See also chapter 3 of this Handbook.

(15) The PPA only required a 60-day notice for withdrawal. It is not clear all took the necessary action, but in effect all GATT Contracting Parties became WTO Members.

(15.) The RTAA authorized the President to reduce tariffs from Smoot-Hawley levels in the context of trade negotiations with other countries. See G Winham, The Evolution of International Trade Agreements (Toronto: University of Toronto Press, 1992), at 19.

(15) B Hoekman, ‘Assessing the General Agreement on Trade in Services’ in W Martin and LA Winters (eds), The Uruguay Round and Developing Countries (Cambridge: Cambridge University Press, 1996) 88; R Adlung, ‘Services Negotiations in the Doha Round: Lost in Flexibility?’ 2006 Journal of International Economic Law 9(4) 865, at 874.

(17) Despite the two-year term, expiring at the end of 2007, the MC of that year has been put off, see GC, Minutes of Meeting, WT/GC/M/110 (15 November 2007), at 24.

(17) Recently, Colombia and Panama each requested the WTO DG's good offices in relation to their requests for consultations concerning the EC's regime for the importation of bananas (EC – Bananas III – Request for Consultations by Colombia, WT/DS361/1, G/L/818 (26 march 2007); and EC – Bananas III – Request for Consultation by Panama, WT/DS364/1 (27 June 2007)). However, their requests weremade pursuant to the 1966 Decision, which developing country Members have the right to invoke in disputes against developed Members pursuant to Article 3.12 DSU. In 2002, the Philippines, Thailand, and the EC requested mediation by the WTO DG to examine the extent to which the legitimate interests of the Philippines and Thailand were being unduly impaired as a result of the implementation by the EC of preferential tariff treatment for canned tuna from certain third countries. The requesting Members, however, did not formally invoke Article 5 DSU because they did not consider the matter at issue to be a ‘dispute’ within the terms of the DSU. Nevertheless, they agreed that the mediator could be guided by procedures similar to those envisaged for mediation under Article 5 DSU. See GC, Request for Meditation by the Philippines, Thailand and the European Communities, WT/GC/66 (16 October 2002) and WTO Secretariat, A Handbook on the Dispute Settlement System (Geneva: WTO, 2004), at 95.

(17) The MFN obligation has been described as the ‘central organising rule of the GATT’ and requires that the best tariff and non-tariff conditions extended to one GATT Contracting Party must be automatically and unconditionally extended to all other Contracting Parties. See Consultative Board, above fn 9, at para 58. See also chapter 6 of this Handbook.

(17) The economic rationale for this type of behaviour was infamously articulated by Lawrence Summers, former chief economist of the World Bank, who began a leaked 1991 memorandum with the words: ‘Just between you and me, shouldn't the World Bank be encouraging more migration of the dirty industries to the LDCs?’. L Summers, ‘Let Them Eat Pollution’ The Economist (8 February 1992), at 66.

(18) See H-J Chang, Knocking Away the Ladder: Development Strategy in Historical Perspective (London: Anthem Press, 2003), at 61, arguing that the US was the country ‘… which first systematized the logic of the infant industry promotion that Britain had used so effectively in order to engineer its industrial ascent’.

(18) At the time of the conclusion of the Uruguay Round, this provision continued to provoke disagreement. Some negotiating parties sought to have the phrase ‘reasonable interpretation’ included instead of the word ‘permissible interpretation’. This standard of ‘reasonableness’ would appear to be drawn from the Chevron doctrine in United States administrative law, see Chevron USA, Inc. v Natural Resources Defense Council, Inc, 467 US 837 (1984). The word ‘reasonable’ was opposed byothers, with agreement finally being reached on the word ‘permissible’ in the closing days of the Round. For a detailed history of the negotiations on this point see Croley and Jackson, above fn 6, at 199; Oesch, above fn 2, at 72–79. In the USGAO Report to the Senate Finance Committee, GAO notes that ‘[a] majority of the experts [GAO consulted] maintained that the United States was not successful in getting the standard of review it wanted in the Anti-Dumping Agreement …’ GAO, World Trade Organization-Standard of Review and Impact of Trade Remedy Rulings, Report to the Ranking Minority Member, Committee on Finance, U.S. Senate (July 2003), at 〈http://www.gao.gov/new.items/d03824.pdf〉 (last visited 22 April 2008), at 30.

(18) J Stiglitz and A Charlton, Fair Trade for All: How Trade Can Promote Development (Oxford: Oxford University Press, 2007), at 30.

(19) G Marceau and JP Trachtman, ‘A Map of the World Trade Organization Law of Domestic Regulation of Goods’ in GA Bermann and PC Mavroidis (eds), Trade and Human Health and Safety (Cambridge: Cambridge University Press, 2006) 9.

(19) All Doha Ministerial Declarations and Decisions are available at 〈http://www.wto.org/english/thewto_e/minist_e/min01_e/min01_e.htm〉 (last visited 12 May 2008).

(19) See the ‘First Report on the Responsibility of International Organizations’ by the ILC Special Rapporteur Giorgio Gaja, A/CN.4/532 (26 March 2002), at para 35: ‘It can certainly be said, as a general principle, that every internationally wrongful act on the part of an international organization entails the international responsibility of that organization’.

(20) Art 8.7 DSU.

(21) G Marceau, ‘Conflict of Norms and Conflicts of Jurisdiction – The Relationship between the WTO Agreement and MEAs and other Treaties’ 2001 Journal of World Trade 35(6) 1081, at 1109.

(22) Ibid at para 60; see also Panel Report, US-DRAMS, at para 6.53, fn 499. See also chapter 12 of this Handbook.

(22) GC, Minutes of Meeting Held on 3 and 8 May 2000, WT/GC/M/55 (16 June 2000).

(23) J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures (Oxford: Oxford University Press, 2007), at 57. See also chapter 5 of this Handbook.

(23) Examples include US – Hot-Rolled Steel and US – Offset Act (Byrd Amendment).

(23) See M Pangetsu, ‘Special and Differential Treatment in the Millennium: Special for Whom and How Different?’ 2000 The World Economy 23(9) 1289.

(24) See Accession of the People's Republic of China: Decision of 10 November 2001, WT/L/432 (23 November 2001); N. Lardy, Integrating China into the Global Economy (Washington, DC: Brookings Institution Press, 2002), at 101–02.

(24) S Charnovitz, ‘Exploring the Environmental Exceptions in GATT Article XX’ 1991 Journal of World Trade 25(1) 37.

(26) GC, WTO Committee on Balance-of-Payments Restrictions, WT/L/45 (23 February 1995).

(27) Appellate Body Report, EC – Asbestos, at para 100 (original emphasis), reads as follows: ‘… a Member may draw distinctions between products which have been found to be “like”, without, for this reason alone, according to the group of “like” imported products “less favourable treatment” than that accorded to the group of “like” domestic products’.

(28) Marine Mammal Protection Act of 1972, 16 USCA 1361 (West 1985 & Supp 1994).

(28) According to the EU, this clause reflects customary international law: EU Annual Report on Human Rights, adopted by the EU Council on 21 October 2000 (Luxembourg: EC Official Publications, 2001), at 30. On these clauses generally, see L Bartels, Human Rights Conditionality in the EU's International Agreements (Oxford: Oxford University Press, 2005).

(28) DSB, Article 5 of the Dispute Settlement Understanding: Communication from the Director-General, WT/DSB/25 (17 July 2001). See also chapter 13 of this Handbook.

(28) Under the EC Treaty the provisions concerning trade policy (Article 113 and later 133) did not foresee any powers for the European Parliament, not even a power of advice. It is only with the recently signed Treaty of Lisbon that the Parliament exercises normal co-legislators' powers together with the Council over autonomous trade policy measures and has a right of approval for trade agreements. See Article 207 and 218 Lisbon Treaty (consolidated version).

(28) Art 8.1 DSU. 29 Art 8.3 DSU.

(29) DL Tehindrazanarivelo, Les sanctions des Nations Unies et leurs effets secondaires: assistance aux victimes et voies juridiques de prévention (Paris: Presses Universitaires de France, 2005).

(29) WTO, Ministerial Declaration, WT/MIN(01)/DEC/1 (20 November 2001), at paras 2 and 16.

(29) Although this is not to say that they were critical of all aspects of S&DT and certainly continued to advocate for preferential access to developed country markets, see E Kessie, ‘Enforceability of the Legal Provisions Relating to Special and Differential Treatment under the WTO Agreements’ 2000 Journal of World Intellectual Property 3(6) 962.

(30) Appellate Body Rep, US – FSC, at paras 104–14.

(30) M Bacchetta and M Jansen, Adjusting to Trade Liberalization: The Role of Policy Institutions and WTO Disciplines (Geneva: WTO, 2003), at 5. The Heckscher-Ohlin theorem states that comparativeadvantage tends to lie with the more abundant factors; the Stolper-Samuelson theorem states that the owners of factors of production used intensively in the production of displaced goods will tend to suffer reduced real income as a result.

(32) Arts 16.4 and 17.14 DSU.

(32) See generally DG Victor, K Raustiala, and EB Skolnikoff (eds), The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge, MA: MIT Press, 1998).

(33) UNCTAD estimated as of 2005 that 2,495 BITs have been concluded and 232 other agreements, many of which are bilateral, have investment provisions UNCTAD, World Investment Report 2006: FDI from Developing and Transition Economies: Implications for Development (New York: United Nations, 2006), at xix.

(33) Marrakesh Ministerial Decision on Trade and Environment, above fn 23.

(34) The situation is all the more complex because the process of making a final determination does not just involve an injury determination. National authorities will typically make a large number of sub-determinations on the way to making a final determination.

(35) The Panel in Turkey – Textiles refused to determine the scope of its own jurisdiction and exercised judicial economy, mostly on the ground that the resolution of the dispute did not require a finding on the WTO-compatibility of a customs union – a matter it found more appropriate for the WTO Committee on Regional Trade Agreements to determine. Panel Report, Turkey – Textiles, at paras 9.52–54. This part of the report was not appealed, though others were.

(35) See, eg, Parkerings AS v Lithuania, ICSID Arbitration Case No. ARB/05/8 (11 September 2007), at paras 378–80, in which the Tribunal read the requirement of ‘like circumstances’ into a provision that did not contain the words, then drew on a NAFTA Chapter 11 decision that incorrectly focused on whether the investors were in like circumstances, rather than whether the treatment was accorded in like circumstances.

(36) Such effects were anticipated by the WTO Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries. See also K Anderson, ‘Trade Liberalization, Agriculture and Poverty in Low-Income Countries’ in B Guha-Khasnobis (ed), The WTO, Developing Countries and the Doha Development Agenda (Houndmills: Palgrave, 2004), at 57.

(36) See D Dallmeyer, ‘The US-Japan Semiconductor Accord of 1996: The Shortcomings of High Tech Protectionism’ 1989 Maryland Journal of International Law and Trade 13(2) 179; D Gantz, ‘Symposium – Prevention and Settlement of Economic Disputes Between Japan and the United States: Part II: Application of Framework to Specific Sectors and Issues, Lessons from the US-Japan SemiConductor Dispute’ 1999 Arizona Journal of International and Comparative Law 16(1) 91; CS Kaufman, ‘The US-Japan SemiConductor Agreement: Chipping Away at Free Trade’ 1994 UCLA Pacific Basin Law Journal 12(2) 329.

(36) Hudec has hinted, quite correctly, that the NT principle appears to have been developed in international economic law with formal discrimination in mind. RE Hudec, ‘GATT/WTO constraints on national regulation: requiem for an “aim and effects” test’ 1998 International Lawyer (32) 619, at 622.

(38) The development of the balancing test has a long history, and was significantly developed, inter alia, by the Appellate Body's reports in Korea – Various Measures on Beef and US – Gambling. In Brazil –Retreaded Tyres, the Appellate Body interpreted ‘necessary’ as that which ‘brings about a material contribution to the objective’ when viewed in light of its regulatory context and balanced against the importance of the interests at stake, the trade-restrictiveness of the measure, and possible alternatives. Appellate Body Report, Brazil – Retreaded Tyres, at paras 150–5.

(38) Appellate Body Report, Korea-Various Measures on Beef, at para 162; Appellate Body Report, Dominican Republic-Import and Sale of Cigarettes, at para 70; Appellate Body Report, US-Gambling, at paras 304–11.

(40) Preamble and Art 1 Safeguards Agreement.

(41) See P Van den Bossche, ‘NGO Involvement in the WTO, A lawyer's perspective on a glass half-full or half-empty’ Maastricht Working Papers 2006–10, at 〈http://www.unimaas.nl/bestand.asp?id=6981〉 (last visited 4 June 2008); W Benedek, ‘Relations of the WTO with other International Organizations and NGOs’ in F Weiss, E Denters, and P de Waart (eds), International Economic Law with a Human Face (The Hague: Kluwer, 1998) 479. See also chapter 24 of this Handbook.

(42) Positive comity means that one of the parties to an FTA applies its competition law to conduct that occurs in its territory and that adversely affects the market of the other party in order to assist enforcement of the competition law of the other party. In negative comity, one of the parties to an FTA refrains from applying its competition law to conduct that occurs in the territory of the other party and that affects the market of the former in deference of policies and interests of the other party. By applying either positive or negative comity, the parties avoid the extraterritorial application of domestic competition law in the spirit of international cooperation.

(42) Appellate Body Report, US – Anti-Dumping Measures on Oil Country Tubular Goods, at para 189.

(42) See Arts 11.1 and 11.2 Anti-Dumping Agreement.

(42) For a utilitarian argument that trade benefits the ‘poor as a class’, see Klick and Tesón, above fn 2.

(42) Resolution 1528 of 27 February 2004, at para 6.

(43) Not a real separation of powers, as in national constitutional systems, but a type of balance between the institutions and the powers they have been allocated by the constitutive treaty. Already at a very early stage, when the European Parliament did not yet have ‘co-legislative’ powers, the ECJ nevertheless considered this balance between the institutions as important: see ECJ, Case 138/79, Roquette Frères v Council, [1980] ECR 3333; ECJ, Case 139/79, Maizena v Council, [1980] ECR 3393; S Prechal, ‘Institutional Balance: A Fragile Principle with Uncertain Contents’ in T Heukels, N Blokker, and M Brus (eds), The European Union after Amsterdam: A Legal Analysis (The Hague: Kluwer, 1998) 273.

(43) Art. 3.2 SPS Agreement.

(45) See Arts 2–4 Safeguards Agreement and Arts 11–20 SCM Agreement.

(45) See fn 1 to Art IX WTO Agreement. Note that in the Doha Declaration, above fn 37, there is a reference to so-called ‘explicit consensus’.

(45) Appellate Body Report, US-Shrimp, at para 133.

(45) S Charnovitz, ‘Symposium 2004: Citizen Participation in the Global Trading System: Panel Open Democratic Participation Scheme for the World Trade Organization: Transparency and Participation in the World Trade Organization’ 2004 Rutgers Law Review 56(4) 927, at 948.

(45) The need to deal with requests for preliminary rulings and other procedural issues has been cited as one of the reasons that would justify moving from ad hoc panels to a roster of permanent panelists. See DSB, Contribution of the European Communities and its Member States to the Improvement of the WTO Dispute Settlement Understanding – Communication from the European Communities, TN/DS/W/1 (13 March 2002) and WJ Davey, ‘The Case for a WTO Permanent Panel Body’ (2003) Journal of International Economic Law 6(1) 177.

(46) See, eg, G Shaffer, ‘The Challenges of WTO law, Strategies for Developing Country Adaptation’ 2006 World Trade Review 5(2) 177, at 177.

(48) It is sometimes overlooked that these rights apply to agricultural products. See, eg, CHR, Globalization and Its Impact on the Full Enjoyment of Human Rights, Report of the High Commissioner for Human Rights, E/CN.4/2002/54 (15 January 2002); C Downes, ‘Must the Losers of Free Trade GoHungry? Reconciling WTO Obligations and the Right to Food’ 2007 Virginia Journal of International Law 47(3) 619, at 639; C Gonzalez, ‘Institutionalizing Inequality: the WTO Agreement on Agriculture, Food Security, and Developing Countries’ 2002 Columbia Journal of Environmental Law 27(2) 433.

(48) S Charnovitz, ‘The World Trade Organization and Environmental Supervision’ 1994 International Environment Reporter 17, at 89, 92 (discussing the irony of WTO's rigid rules on health and environment in the context of its soft stance on protectionism).

(49) Panel Report, Guatemala-Cement II, at para 8.19.

(49) G Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol 2 (Cambridge: Grotius Publications, 1986), at 438. Fitzmaurice defined the ‘merits of a dispute’ as consisting of ‘all those propositions of fact and of law which must be established by a party in order to enable it to obtain a judgment in its favour, on the assumption that the tribunal has jurisdiction to entertain these propositions, and that there is no objection to the substantive admissibility of the claim’. Ibid. at 448. This definition was a refinement of the definition offered by Judge Read in ICJ, Anglo-Iranian Oil Co. Case (United Kingdom v Iran) (Preliminary Objection), Dissenting Opinion Judge Read, ICJ Reports (1952) 142, at 148.

(50) 2005 World Summit Outcome, General Assembly, Resolution 60/1 (2005), A/RES/60/1 (24 October 2005), at para 97.

(50) But, as critics note, once the lack of environmental standards is recognized as a subsidy or grounds for dumping charges, it is a ‘slippery slope’ to recognizing other government expenditures (or the lack thereof) as subsidies. GATT Secretariat, Trade and the Environment, GATT/1529 (3 February 1992), at 20.

(51) See G Marceau, ‘Fragmentation in International law: The Relationship between WTO Law and General International Law’ 2008 Finnish Yearbook of International Law (XVII), forthcoming.

(52) See MC, above fn 47, at paras 1.1, 3.1, 3.2, 5.2, and 7.2.

(53) ML Busch and E Reinhardt, Testing International Trade Law: Empirical Studies of GATT/WTO Dispute Settlement, Paper presented at the University of Minnesota Law School Conference on the Political Economy of International Trade Law (15–16 September 2000), at 〈http://www.userwww.service.emory.edu/~erein/research/titl.pdf〉 (last visited 5 April 2008).

(54) This section includes excerpts from G Marceau and JP Trachtman, ‘A Map of the WTO law on domestic regulations’ in F Ortino and E-U Petersmann (eds), The WTO Dispute Settlement 1995–2003 (The Hague: Kluwer, 2004), 275.

(56) Panel reports generally include lengthy summaries of parties' arguments plus reasoning and often run to hundreds of pages, plus exhibits. Appellate Body reports generally run from 100 to 300 pages.

(57) Request for Consultations by Colombia, European Communities-Regime for the Importation of Bananas, WT/DS361/1 (26 March 2007). The ‘good offices’ process commenced in December 2007 andcontinued into 2008. The provisions of the 1966 Decision were resorted to on six occasions between 1978 and 1993 by developing countries. Analytical Index: Guide to GATT Law and Practice, Vol 2 (Geneva: WTO, 1995) at 765–66.

(57) Even multilateral measures may raise questions of fairness, particularly in the context of multilateral trade measures adopted by parties to an MEA against non-Parties.

(57) GC, Implementation-Related Issues and Concerns, WT/L/384 (19 December 2000).

(59) This has been described as ‘embedded liberalism’, meaning that trade liberalization is ‘embedded’ in a commitment to domestic stability: J Ruggie, ‘International Regimes, Transactions, and Change: Embedded Liberalism and the Post-war Economic Order’ 1982 International Organization 36(2) 379.

(59) Loewen v United States, above fn 36, at para 132; ICJ, Case Concerning Elettronica Sicula S.p.A. (ELSI) (US v Italy), Judgment, ICJ Reports (1953) 15, at para 128.

(60) See Art 3.2 SPS Agreement.

(61) See Statement of the Chairman, above fn 46.

(62) See Hughes, above fn 14, at 216–17.

(63) Ibid at para 13.

(67) Cass, above fn 54, at 53.

(68) See also Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, Report of the Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises, 9 February 2007, A/HRC/4/035, at paras 63–85.

(69) H Correll, ‘A Challenge to the United Nations and the World: Developing the Rule of Law’ 2004 Temple International and Comparative Law Journal 18(2) 391, at 397.

(70) On the different aspects of non-discrimination in human rights law, see S Marks and A Clapham, International Human Rights Lexicon (Oxford: Oxford University Press, 2005), at 265–67.

(72) HM Haugen, ‘The Nature of Social Human Rights Treaties and Standard-Setting WTO Treaties: Question of Hierarchy?’ 2007 Nordic Journal of International Law 76(4) 435. On the law applicable in WTO proceedings, see chapter 12 of this Handbook.

(74) See Appellate Body, Proposed Amendments to the Working Procedures for Appellate Review – Communication from the Appellate Body, WT/AB/WP/W/8 (8 April 2004), which includes an explanation about the more significant modifications.

(74) This need for greater reliance on economic law is particularly true if we take into consideration the fact that institutions such as UNMIK or KFOR enjoy immunity in local courts. See Ombudsperson Institution in Kosovo, Special Report No 1 on the Compatibility with recognized international stand-ards of UNMIK Regulation No 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000), 26 April 2001.

(74) RL Howse and DH Regan, ‘The Process/Product Distinction – An Illusory Basis for Disciplining “Unilateralism” in Trade Policy’ 2000 European Journal International Law 11(2) 249, at 260.

(77) Resolution 1483 (2003), at para 8 (e)-(d). T he recent Security Council Resolution 1770 of 10 August 2007 confirms however the trend of an increasing involvement of the UN within economic matters in Iraq. The Resolution seeks to enlarge the UN mandate in Iraq through a stronger role of the Special SRSG and the UN Assistance Mission for Iraq (UNAMI). For example, the SRSG and UNAMI, ‘as circumstances permit, ( … ) shall [p]romote, support, and facilitate, in coordination with the Government of Iraq: (iv) Economic reform, capacity-building, and the conditions for sustainable development, including through coordination with national and regional organizations and, as appropriate, civil society, donors, and international financial institutions’ (at para 2).

(78) The Determination and Findings, 5 December 2003, at 〈http://www.washingtonpost.com/wp-srv/world/documents/iraqcontracts_dod20031205.pdf〉 (last visited 25 January 2008). Note that the US eventually extended the call for tender to all States without the previous restrictions.

(78) Ibid at para 443.

(79) Eg, Edwards and Lester recommend an approach to TRIMS regulation modelled on the SCM Agreement, which prohibits certain measures and exempts others; see R Edwards Jr and S Lester, ‘Towards a More Comprehensive World Trade Organization Agreement on Trade Related Investment Measures’ 1997 Stanford Journal of International Law (33) 169.

(83) One hearing day runs seven to eight hours, excluding the lunch break.

(83) Article 43 of The Hague Regulations concerning the Laws and Customs of War on Land annexed to the 1907 Convention (IV) respecting the Laws and Customs of War on Land that ‘the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’. If the stabilization of an economy forms a part of the maintenance of public order and safety, questions arise as to the precise limits of this obligation.

(84) See Proposal by Mexico, Negotiations on Improvements and Clarifications of the Dispute Settlement Understanding, TN/DS/W/23 (4 November 2002), at 5–6.

(85) Art 2.2 TBT Agreement; Art 5.6 SPS Agreement; Art VI:5 GATS. The GATS rule only applies to new and unforeseen measures unless new rules are agreed, which to date has only been done in the accountancy sector. The necessity test is drawn from the jurisprudence on Article XX GATT 1994, but there it only applies to measures that have already been determined to discriminate against foreign products.

(86) B Mercurio, ‘TRIPS-Plus Provisions in FTAs: Recent Trends’ in Bartels and Ortino, above fn 57, 215, at 220–23.

(87) Mattoo, above fn 48, at 1229.

(87) See the letter and annexed documents concerning the Council of Ministers of the Iraqi Republic, which adopted the decision to create the Committee of Financial Experts, Republic of Iraq, General Secretariat of the Council of Ministers, 22 October 2006; see also Letter from the UN Representative of Iraq to the United Nations to the Chairman of the IAMB, 31 October 2006, and Statement by the International Advisory and Monitoring Board on the Development Fund for Iraq, 6 November 2006, all those documents are available at 〈 http://www.iamb.info〉 (last visited 25 January 2008).

(89) Report of the ILC Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Finalized by Martti Koskenniemi, A/CN.4/L.682 at para 169.

(89) Appellate Body Report, US – Stainless Steel, at para 162.

(89) See the case law on the need to maintain parallelism when applying of safeguards in the context of FTAs; for example, Appellate Body Report, US-Steel Safeguards, at paras 433–56.

(90) A Keck and P Low, ‘Special and Differential Treatment in the WTO: Why, When and How’, WTO Staff Working Paper ERSD 2004–03 (January 2007), at 〈http://www.wto.org/english/res_e/reser_e/ersd200403_e.htm〉(last visited 5 April 2008), at 12.

(92) See Arts 2.1–2.8 TBT Agreement. Under Articles 2.9–2.12, a WTO Member is, inter alia, obliged to notify proposed technical regulations to other Members and take account of their comments. Members must also publish proposed technical regulations.

(93) Ibid at paras 152–55.

(95) These calls are not limited to binding concessions in goods schedules. In 2006, the LDC Group put forward a proposal whereby developed countries ‘shall’ provide ‘non-reciprocal special priority’ in services sectors and modes of supply of interest to LDCs ‘on a permanent basis and in a manner that ensures security, stability and predictability’. Communication from the Republic of Zambia on behalf of the LDC Group, A Mechanism to Operationalize Article IV:3 of the GATS, TN/S/W/59 (28 March 2006).

(95) See Appellate Body Report, EC-Hormones, at para 115.

(97) The GC held a special session to discuss the admissibility of amicus curiae briefs in November 2000 after the Appellate Body adopted a procedure to deal with a number of such briefs filed in EC – Asbestos. The GC suggested to the Appellate Body that it exercise extreme caution in this regard. See GC, Minutes of meeting held on 22 November 2000, WT/GC/M/60 (23 January 2001), at 28.

(97) Art VI GATS.

(97) Panel Report, EC-Sardines, at para 7.137.

(99) Appellate Body, Working Procedures for Appellate Review, WT/AB/WP/1 (15 February 1996).

(100) The only other example, since the Enabling Clause was enacted in 1971, related to the Request for Consultations by Brazil, European Communities – Measures Affecting Soluble Coffee, WT/DS209/1 (19 October 2000).

(101) Appellate Body Report, Japan – Alcoholic Beverages II, at 11.

(103) See generally Committee on Specific Commitments, Report of the Meeting Held on November 2004 – Note by the Secretariat, S/CSC/M/35 (27 January 2005), at para 14 and surrounding.

(103) See Art 7 ILO Constitution, especially Article 7.3 that charges an impartial Committee with looking into all questions relating to the selection of members of chief industrial importance before they are decided by the Governing Body. See ILO Committee on Legal Issues and International Labour Standards, Fourth Item on the Agenda: Composition of the Governing Body – Criteria for Geographical and Country Representation within the Governing Body, GB.300/LILS/4(November 2007). This document sketches the evolution of the notion ‘Members of chief industrial importance’.

(104) Expert committees of the kind established by the SPS Agreement provide a less formal venue that could potentially be used to address disputes. See J Scott, The WTO Agreement on Sanitary and Phytosanitary Standards: A Commentary (Oxford: Oxford University Press, 2007)

(106) Note that trade weight would not determine the number of votes, only the selection. The rule should remain one state one vote. In the literature, Thomas Cottier has consistently made highly elaborate, but also realistic proposals for weighted voting in the WTO that would also considerably improve the situation with respect to decision-making. At the present stage this author believes that priority should be given to the creation of a legitimate non-plenary organ because that will have very beneficial secondary effects for WTO governance, notably for the DG and the Secretariat who will have a very valuable and legitimizing sounding board or counterpart. More generally, such an organ will contribute to the balance between the organs of the WTO.

(114) More progress has been possible in addressing trade-and-environment issues in bilateral or regional trade agreements, due to the smaller number of States involved. For example, recent free trade agreements between China and Chile, Japan and Mexico, and the US and Peru all contain environmental provisions.

(117) Appellate Body Report, EC-Asbestos, at para 168.

(119) GC, Headquarters Agreement – Decision by the General Council on 31 May 1995, WT/L/69 (1 June 1995).

(124) ILO Administrative Tribunal, Judgment No. 2226 (16 July 2003); ILO Administrative Tribunal, Judgment No. 2254, 95th Session (16 July 2003). The first one concerned a director abruptly laterallyremoved by the DG without any serious procedure, who received damages for moral injury. The second one is legally the most interesting one, since it posited the principle that the administration cannot accept, without any serious reflection and further discussion with the person concerned, the latter's waiver of a disciplinary procedure.

(127) Appellate Body Report, EC – Computer Equipment, at para 84 (emphasis added).

(128) Nordstrom, above fn 121, at 849.

(130) Only Art 17.14 DSU on the adoption of Appellate Body reports speaks explicitly of ‘negative consensus’. Art 16.4 DSU on the adoption of panel reports simply states that a panel report shall be adopted at a DSB meeting within 60 days after its circulation to the parties, unless it is appealed.

(133) One can think of the hormones and GMO legislation in the EC and the anti-dumping legislation in the US.

(151) Compare Marceau, above fn 21, at 1089, fn 70 with G Marceau, ‘Balance and coherence by the WTO Appellate Body: who could do better?’ in Sacerdoti, Yanovich, and Bohanes, above fn 25, 326, at 330.

(154) The Appellate Body will, however, directly review a WTO Member's measures for their WTO-consistency when it completes the panel's legal analysis. When it does so, the Appellate Body applies the same standard of review as a panel. However, given its jurisdictional limitations, the Appellate Body can only complete the analysis if there are sufficient factual findings by the panel or uncontested facts on the record. See, eg, Appellate Body Report, US-Hot-Rolled Steel, at para 235; Appellate Body Report, Canada-Dairy (Article 21.5-New Zealand and US), at para 98; Appellate Body Report, US-Section 211 Appropriations Act, at para 343.

(166) In support, Judge Buergenthal wrote in his Separate Opinion in Oil Platforms that the principle of Article 31(3)(c) VCLT ‘is sound and undisputed in principle as far as treaty interpretation is concerned’. ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America), Separate Opinion Judge Buergenthal, ICJ Reports (2003) 270, at para 22.

(170) Compare Appellate Body Report, US – Shrimp, at para 130 with ICJ, Namibia, above fn 160, at 31.

(177) The Biosafety Protocol is binding on the EC; and signed by Argentina and Canada. The US has not signed the Protocol, and the EC argued that the US had not persistently objected to the Protocol.

(188) J Pauwelyn, ‘Chapter 6. Relationship with International Law, Comments’ in Andenas and Ortino, above fn 93, at 494–95. Klabbers agrees that the VCLT needs rethinking on the doctrines of rebus sic stantibus and interim obligations, but it is less clear if he would come to a similar conclusionon Articles 31 to 33 VCLT. J Klabbers, ‘Re-inventing the Law of Treaties: The Contribution of the EC Courts’ 1999 Netherlands Yearbook of International Law (30) 45, at 46, 73–74.

(194) Ibid [citing the Panel Report, at para 7.318, quoting Appellate Body Report, EC – Computer Equipment, at para 82].

(198) Appellate Body Report, Japan – Alcoholic Beverages II, at 107; Appellate Body Report, US – FSC, at paras 112–13, fn 217.