Corporate Entities and WTO Law

Abstract

WTO panels have not been called upon to resolve overly complex corporate law issues to date. However, the range of legal and economic relationships among corporate entities, and the varied situations in which such relationships may be relevant to the rights and obligations of Members under the WTO Agreements, suggest that such issues may one day arise squarely for consideration in WTO dispute settlement. This paper consists of a survey of selected WTO Agreements and jurisprudence examining the extent to which WTO law (i) gives effect to the existence of a corporate entity as a legal person that is separate from its owners; and (ii) takes into account the economic links that may exist between corporate entities which are related through various forms of ownership or control. We begin with a consideration of disputes involving Members' obligations under the GATT 1994, before turning to disputes involving obligations under the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and the Agreement on Subsidies and Countervailing Measures. Although these Agreements are generally not concerned with the legal identity of the producer of goods or the form of business organization or corporate structure of private parties involved in trade in goods, panels and the Appellate Body appear to have interpreted these Agreements in a manner that is sensitive to the economic realities of links of ownership and control among corporate entities, particularly where this is seen as necessary to prevent circumvention of Members' obligations. The final part of the paper considers the nature of Members' rights and obligations under the GATS as they apply to service suppliers that are corporate entities. In particular, we examine the rules for allocating service suppliers that are corporate entities to particular Members for purposes of the GATS.