Juridical Analysis of Using the Panel Body Suspension Strategy and Jurisprudence in "Similar Matter" Trade Dispute Settlement at the WTO (Case Studies DS593 and DS600)

The article discusses the WTO-compatibility of a reduced VAT rate for 'environmentally friendly' products as proposed in the European Commission's Green Paper on Integrated Product Policy. It analyses certain hypothetical cases in the light of GATT Articles III and XX and the corresponding WTO jurisprudence. Furthermore, the article elaborates on the issues of 'like products', 'PPMs' and the question whether identical products can, nevertheless, be considered 'unlike'. Concerning the GATT Article XX justifications the article develops the distinction of discriminatory effect, for example a GATT Article III violation, and discriminatory intent which precludes justifications under GATT Article XX. Finally, it discusses the criticism raised in the literature of the Appellate Body's approach to GATT Article III and XX as improperly limiting the regulatory autonomy of WTO Members. The article concludes that the careful approach chosen by the Appellate Body leaves sufficient scope for WTO Members to address public policy concerns and does not expose this young legal institution to severe institutional criticism. Alternative approaches proposed in the literature lack a textual basis in GATT 1994, add to or diminish the rights and obligations of WTO Members under GATT Article XX, and would expose the Appellate Body to criticism of making instead of interpreting the law. Copyright Oxford University Press 2003, Oxford University Press.

Climate Change and Unresolved Issues in WTO Law

One of the ugly facts of life which we now have to face fairly and squarely since the failure of the high-level discussions at Geneva in July and October I955 is that nuclear disarmament is still a long way off, though a measure of conventional disarmament may be nearer. Specifically, our defence policy must, I suggest, aim at three main objectives: to prevent all wars, small, medium, and large, and above all to ensure that the H-bomb is never used; to strengthen our hand in negotiations and in blocking Communist power politics, particularly in Germany but also all round the Communist perimeter; to pave the way for nuclear disarmament, and meanwhile to bring about and exploit any conventional disarmament that is practicable. Our present defence policy, which Mr Dulles has labelled 'massive retaliation', seems to be becoming much too drastic and inflexible for these objectives. Increasingly we are getting into a position where, in effect, we shall be forced to threaten, and if necessary initiate, the destruction of civilization in the event of any measure of aggression too powerful for our small conventional forces to combat. For, except in the most restricted areas, our conventional forces are unable to withstand the vast Communist conventional forces without the tactical use of atomic weapons, and there seems at present to be no distinctionbetween the tactical use of atomic weapons and the unlimited strategic use of the H-bomb. The proposition which I want to put forward is, that we should, in fact, establish a clear distinction between the tactical and strategic use of nuclear weapons, so that we can use our atomic weapons tactically without provoking the strategic use of hydrogen weapons.2 I suggest that we work out and declare in peace, without waiting for Communist agreement, some such distinctions as these: we regard the tactical use of nuclear weapons as confined to atomic weapons only, and we exclude the use of even these against towns and cities; strategic use of nuclear weapons would refer to the use of hydrogen weapons and to the mass destruction of towns and cities, even by atomic weapons. We might also add that, to conform to the moral principle of limiting the use of force

On 25 July 2022, the World Trade Organization (WTO) issued an arbitration award under Article 25 of the Dispute Settlement Understanding (DSU) on the appeal from the Panel Report in Turkey–Pharmaceuticals. This is the first use of the DSU Article 25 arbitration proceedings for the review of a WTO panel decision. As such, the case is highly significant in that it demonstrates how this alternative dispute settlement method can be successfully utilized to fulfil the function of appellate review after the Appellate Body (AB) became paralysed. Moreover, this innovative use of Article 25 arbitration may suggest a long-term solution in the reform of WTO dispute settlement. With respect to substantive legal issues, this case is also noteworthy, for it dealt with the question of public health and WTO law, a particularly sensitive topic in the post-pandemic era. This essay provides a critical review of the findings of the Panel and the Arbitrators on the substantive issues, while appraising the systemic significance of this first appeal arbitration. WTO Dispute Settlement, DSU Article 25 Arbitration, WTO Reform, Appellate Review, GATT Article XX(b), public health, localization measure

A Modest Victory at the WTO for Ontario's FIT Program

Health measures have posed particularly difficulties within the WTO system. The protection of is a key responsibility of national governments. Health risks may, however, be invoked justify and mask protectionist measures. This chapter examines three major sites within the WTO system where measures are scrutinized:1. The general exception for measures found in GATT Article XX(b)2. The use of risk justify regulatory distinctions under GATT Articles III:43. The WTO's Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)Health measures enjoy an enhanced status in the WTO system. An otherwise inconsistent measure may be maintained if its principal object is the protection of health. GATT Article XX(b) provides an exception for GATT-inconsistent measures if (i) the measure is necessary protect human, animal or plant life or health and (ii) the application of the measure survives the tests contained in Article XX's chapeau.GATT Article III:4 prohibits discrimination in regulatory treatment between imported products and products of national In EC-Asbestos, the Appellate Body rejected Canada's Article III:4 discrimination claim, holding that it was proper consider the adverse effects of an imported product in order support a finding that it was not like competing products of national origin. Given the complexity (and controversy) surrounding the compatibility of measures with GATT norms, the exception found in Article XX(b) was supplanted by the SPS Agreement. The SPS Agreement applies most but not all measures. The SPS Agreement contains both substantive tests and procedural requirements. Importantly, WTO Members are called on base their SPS measures on a risk assessment, taking into account scientific evidence. SPS measures that conform to international standards are presumed be consistent with WTO norms.

The variety of investments made by powerful Sovereign Wealth Funds (SWFs) is often directed to the globally booming service sector which is regulated by the General Agreement on Trade in Services (GATS). This paper analyses the scope, substance and procedural rights which may benefit SWFs. The basic principles of World Trade Organization (WTO) law provide a legal framework for regulating SWF investment while the members' specific commitments may provide significant liberalization. These positive elements for SWFs are tempered by the existence of exceptions and the relative shortcomings of state-to-state dispute settlement in the WTO and the lack of retroactive remedy. However, the paper shows that far from being perfect and complete, the GATS provides an international basis for SWFs to devise their investment strategies and an ideal forum in which to obtain further liberalization in current negotiations.

In December 2019, the World Trade Organization (WTO) litigation system was deadlocked. One of the important concerns which arose then was how the blockage of the litigation system could affect Dispute Settlement Understanding (DSU) procedural provisions governing the suspension of concession and other obligations. In the light of this these circumstances, we need to discuss the “sequencing” issues regarding the claimant’s procedural right to seek authorization for suspension in accordance with Article 22 of the DSU and implementation procedure envisaged in Article 21(5). Thus far, the WTO judicial bodies have been inclined to the position that there is no “sequencing condition” for exercising procedural rights provided in Article 22. Contrary to the position of the WTO jurisprudence, academics mostly advocate that the relationship between Articles 21(5) and 22 of the DSU exists through sequencing prerequisite. However, this problem needs to be redefined in the light of the irregular circumstances that may be created by the blockage of the litigation system. Therefore, exclusively in situation where litigation is in blockage, the claimant should be entitled to commence the Article 22 procedure, without prior employment of the implementation procedure in accordance with Article 21(5) of the DSU. In normal circumstances, the claimant must respect a sequencing prerequisite.

The Doha Declaration on TRIPS and Public Health Under the Vienna Convention of the Law of Treaties

Focusing on Substantive Law in International Economic Relations: The Public Morals of GATT's Article XX(a) and Conventional Rules of Interpretation

1. EC – Seal Products (WT/DS400 & WT/DS401) is a case that has attracted probably the greatest public attention in recent years for the animal-welfare side of its story and the involvement of people like the Inuit, who are most remote from international trade. Jurisprudentially, it is also an interesting case. Among other things, the Panel identified and explicitly discussed a long-avoided question for the first time: Are trade-restrictive regulatory measures otherwise covered by GATT Article XX (and similar provisions in other WTO Agreements) still legitimate exceptions to WTO obligations if these regulatory measures contain exceptions of their own? In EC – Seal Products, for the first time, the Panel and the Appellate Body (AB) provided a clear answer: Such measures could still qualify as exceptions under GATT Article XX even if these measures contain their own exceptions that compromise the immediate policy objectives of the measures by simultaneously accomodating other policy objectives when these other policy objectives are acceptable in their own right.

The existing literature on soil strategy is measure. The problem of trafficability of soils for strategic and tactical use is of great importance and needs extensive investigation. Practical methods of measuring traficabilit,y of soils which are useful for field work are few. New methods and instruments which are simple and light in design, quick in action and of a fairly high degree of accuracy and reproducibility must be developed.

There has been a gradual change and paradigm shift in the multilateral trade sphere regarding the links between trade, sustainable development and the environment. Sustainable environment is no longer outside the realm of the WTO. The preamble tothe Agreement Establishing the WTO has been expanded to include a specific commitment to sustainable development. The WTO approach to sustainable development seeks to balance economic development and environmental protection concerns. This approach is notable particularly in GATT Article XX, and in several of GATT’s associated agreements. The decisions of the WTO dispute resolution bodies also had some ramifications for the trade-environment link debate by stating that trade interests do not exist in clinical isolation to non-trade interests such as the environment. Nevertheless, there are several challenges to the trade-environmentinterface, which require reforms to achieve a more coherent and balanced approach to multilateral trade policy, environmental protection and sustainable development.

According to the European Union’s recast Renewable Energy Directive (RED II), the EU aims to phase out feedstock biofuels that involve high indirect land-use change (ILUC) by 2030, which includes crude palm oil only. Indonesia, the world’s leading producer of crude palm oil, contests this regulation, claiming that the classification of biofuels as being produced with high- or low-risk ILUC is discriminatory and inherently protectionist. This study examines the critical ambiguities of protectionism and sustainability, using a legal framework to empirically ascertain the nature of RED II and Indonesia’s institutional response. Southeast Asian palm oil and European vegetable oils (such as rapeseed and sunflower oils) are considered ‘like products’ under World Trade Organization criteria that emphasise product-related process and production methods. RED II has the potential to qualify for exemptions under GATT article XX. However, the extraterritoriality of RED II, which aims to reduce emissions, is contested, as is the unilateral nature of the ILUC risk measurements.

Environment and Trade Matters under GATT Article XX