(p. 773) Index
(p. 773) Index
n = footnote.
(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.
(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.
(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) GC, Minutes of Meeting Held on 3 and 8 May 2000, WT/GC/M/55 (16 June 2000).
(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) 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,  ECR 3333; ECJ, Case 139/79, Maizena v Council,  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.
(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.
(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.
(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.
(198) Appellate Body Report, Japan – Alcoholic Beverages II, at 107; Appellate Body Report, US – FSC, at paras 112–13, fn 217.