Article XIX Research Articles

SAFEGUARD RE-INVESTIGATION BY MADAGASCAR GOVERNMENT ON PASTA PRODUCTS FROM INDONESIA BASED ON GATT/WTO FRAMEWORK

Due to the increase of import in the last 4 years, Madagascar investigated imported pastain October 2018, terminated it on July 10, 2019, and reinvestigated it on July 18, 2019. They were followed with Provisional Safeguard Measures(PSM). This study aimed to know whether Madagascar had been fulfilling the elements of Article XIX GATT in the preliminary determination of investigation and whether a safeguard reinvestigation is in accordance with the GATT/WTO. Researchers used a juridical normative approach. The result showed that serious injuries and causal links from Article XIX GATT were undetermined in the preliminary determination. Neither the GATT nor Agreement on Safeguard (SA) were not regulating safeguard reinvestigation, so it can proceed but without PSM in the second investigation, because it violated the provisions of Article 6 SA.Madagascar shall immediately completing the elements that had not been determined and revoke the PSM in the second investigation.

One Step Forward and Two Steps Back? Evolution of Bilateral Safeguard Provisions in Preferential Trade Agreements

There is an emergence of including bilateral safeguard provisions in Preferential Trade Agreements (PTAs). Most PTAs embed bilateral safeguard provisions to buffer the risk of import surges caused by tariff reductions in the intra-PTA trade. These provisions can be applied only between the PTA members, and they mainly have legal effect during the transitional period of forming a customs union or a free trade area. These provisions are linguistically similar to the multilateral safeguard codes (MSCs), i.e., Article XIX General Agreement on Tariffs and Trade (GATT) and the Agreement on Safeguards (SA), some of them even directly incorporate or copy some of the language from MSCs. This article observes that these bilateral safeguard provisions reveal ‘evolving’ features and can be mapped into three generations. Aside from the great similarity as compared to the MSCs, in the Laissez-faire of PTAs, bilateral safeguard provisions deviate from the WTO rulings: on the one hand, they are more trade-friendly since they primarily limit the form of safeguard measures to tariffs, and the duration is significantly shorter; on the other hand, they deviate from the important value of WTO since the special and differential treatment for the developing countries are hardly addressed in the North-South PTAs, the same applies to the prohibition of ‘grey area’ measure. bilateral safeguard, WTO, preferential trade agreement, ‘grey area’ measure, de minimis provision, special and differential treatment, Committee on Safeguards

An Evaluation on the GATT, the WTO’s Agreement on Safeguards, and the Dispute Settlement Procedure

This study focuses on evaluating the General Agreement on Tariffs and Trade (GATT) Article XIX, the World Trade Organization’s (WTO) Agreement on Safeguards (AoS), and the Dispute Settlement Procedure (DSP) for the safeguards by developing a theoretical model. To make a fair comparison, we analyse the timing of the DSP, the political ties between the safeguard imposing country and the countries whose exports are affected from these duties, ex-ante against interim safeguard tariffs, and we present respective extensions over the model initially developed Beshkar (2009). For this purpose, a model design is introduced for GATT, WTO, and DSP to find the incentive- compatible agreement that maximizes political welfare under the AoS, aiming to extend Beshkar’s analyses. We find that determining the safeguard tariff level at an interim step instead of ex-ante leads to the tariff that is politically the best for a country at that instant but does not necessarily lead to an optimal tariff. As a result, we reveal that WTO procedures do not always produce the best tariff options for the parties in safeguard measures.

Can the Appellate Body Be Saved?

The ‘Walker Paper’ represents a commendable effort to find middle-ground on the World Trade Organization (WTO) Appellate Body, but does not address the US concerns about the Appellate Body’s overreaching in antidumping, countervailing duty, and General Agreement on Tariffs and Trade (GATT) Article XIX ‘escape clause’ disputes, and instead seizes on a series of half-hearted fixes to the long list of concerns in US Trade Representative’s (USTR’s) ‘Report on the Appellate Body of the World Trade Organization’. US concerns about overreaching date back to the Bush 43 and Obama Administrations and are rooted in the Appellate Body’s ‘zeroing’ line of cases. The concerns rest on the conviction of US trade officials who participated in the Uruguay Round negotiations and later served in the Bush 43, Obama, and Trump Administrations, that there was never a WTO agreement to abolish ‘zeroing’. This view was shared by the WTO Secretariat and WTO Panels and underpinned the contentious, decade-long impasse between USTR, the WTO Secretariat, and WTO Panels on the one hand, and the Appellate Body and Appellate Body Secretariat on the other. While the Appellate Body’s overreaching has multiple sources, one is its dismissive approach to negotiating history under Article 32 of the Vienna Convention, and obsessive reliance on the Oxford English Dictionary as a main source of meaning in interpreting the WTO Agreements. Had the Appellate Body taken a more respectful look at the Uruguay Round negotiating history, it would have found no support for efforts to read a broad prohibition on zeroing into terms that dated back to the Kennedy Round Antidumping Agreement, Tokyo Round Antidumping Code, and GATT 1947. The Appellate Body’s overreaching also appears to stem from hubris, as some Appellate Body Members have sought to make their mark on international jurisprudence or serve as saviours of the WTO system. While some in Geneva are clearly hoping the US concerns will disappear once the Biden Administration takes office, these concerns predated Ambassador Lighthizer by over a decade and are shared by both Republicans and Democratic Members of Congress. Accordingly, even if the new Administration were to seize on some variant of the Walker paper as an excuse to placate US allies and trading partners, it’s unlikely to offer a lasting solution, since the same problems will likely recur without serious systemic and structural reforms. World Trade Organization, WTO, Appellate Body, Dispute Settlement Understanding, Dispute Settlement, Antidumping Agreement, Zeroing

Negotiation of Specific Commitments under the Gats Scope and Negotiating History – A Legal Commentary on Article Xix Gats

This contribution offers a comprehensive analysis of Art. XIX GATS, entitled “Negotiation of Specific Commitments”, which clarifies the manner in which negotiations under the GATS should proceed in order to progressively achieve higher levels of liberalization. This provision also identifies various factors that should be taken into account during the future negotiations on services, such as Members’ national policy objectives and their level of development, and ensuring appropriate flexibility for developing countries. The fact that the single undertaking approach appears to be currently in retreat in favour of a plurilateral approach offers interesting perspectives. Negotiations for additional services liberalization alone can also create an important number of trade-offs as many economies, developed and developing alike, maintain several barriers to trade in services. For this to occur, services negotiations will need to be driven by domestic priorities and forces that gradually encompass the extensive payoffs associated with the pursuit of regulatory reforms in the service sector.

WTO 상소기구의 기능 변화와 전략적 통상정책(The Reform of the WTO's Appellate Body and its Implications on Strategic Trade Policies)

WTO 상소기구의 기능 변화와 전략적 통상정책(The Reform of the WTO's Appellate Body and its Implications on Strategic Trade Policies)

A Critical Assessment of the Zimbabwe-South Africa Import Licensing Dispute

The gravamen of the dispute between Zimbabwe and South Africa is the introduction by Zimbabwe of an import-licensing regime for various goods through Statutory Instrument 64 of 2016 (‘the Instrument’). Zimbabwe alleges that the Instrument is primarily aimed at protecting local industries and alleviating balance of payment challenges. Consequently, this article assesses the legality of the Zimbabwe import-licensing regime implemented primarily against goods from South Africa by examining the grounds of justification proffered by Zimbabwe. The article contends, first, that the Instrument is a quantitative restriction that violates Articles XI.1 and XIII of the General Agreement on Tariffs and Trade (GATT). Secondly, the article argues that the Instrument falls foul of the WTO Agreement on Import Licensing Procedures in that the administration of the measure is unduly burdensome and goes beyond the extent necessary. Thirdly, the article contends that the Instrument fails to fulfil the requirements for a valid ‘safeguard measure’ in the manner contemplated by Article XIX of GATT and the Agreement on Safeguards. In the alternative, the article argues that the urgency of the situation in Zimbabwe is such that any delay would cause irreparable damage and therefore entitles Zimbabwe to exercise the right to implement safeguard measures. Lastly, the article contends that the Instrument is substantially in line with the ‘balance of payments’ exception as postulated by the Understanding on the Balance of Payments Provisions of the General Agreement on Tariffs and Trade 1994 and GATT.

Eight New Articles for the New York Constitution

This essay discusses revision of thirteen articles among the twenty articles of the New York Constitution: article VII (State Finances), article VIII (Local Finances), article X (Corporations), article XI (Education), article XII (Defense), article XIII (Public Officers), article XIV (Conservation), article XV (Canals), article XVI (Taxation), article XVII (Social Welfare), article XVIII (Housing), article XIX (Amendments to Constitution), and article XX (When to Take Effect). One step of the proposed revision is to eliminate an article, among the aforementioned present articles, the subject of which is not wanted in a constitution. Example: Present article XVII (Social Welfare).Another step of the proposed revision, in relation to an article with a subject which is wanted in a constitution, but which has numerous sections, is to retain the few wanted sections, and to discard the unwanted sections. Example: present article XVI (Taxation), comprised of six sections, would be transformed into revised article XIII (Taxation), comprised of three sections.A third step is to retain some sections of two articles, each with a subject which is wanted in a constitution, to combine wanted sections into one new article, and to discard the unwanted sections. Example: present article X (Corporations), comprised of eight sections, and present article XI (Education), comprised of three sections, would become revised article VIII (Corporations), comprised of four sections.Summary: The thirteen present articles would be replaced by eight revised articles. About 22,000 words in the thirteen present articles would be replaced by about 3,000 words in the revised articles, a saving of about 19,000 words.Other essays about revision of the New York Constitution are:New Preamble and New Bill of Rights Article for the New York ConstitutionNew Suffrage Article for the New York ConstitutionNew Legislature Article for the New York ConstitutionNew Executive Article for the New York ConstitutionNew Officers and Civil Departments Article for the New York ConstitutionNew Judiciary Article for the New York ConstitutionNew Local Governments Article for the New York Constitution

Definition of Trade in Services: A Critical Analysis

The General Agreement on Trade in Services (GATS) is a relatively new agreement. It entered into force in January 1995 as a result of the Uruguay Round negotiations to provide for the extension of the multilateral trading system to services. With a view to achieving a progressively higher level of liberalization, pursuant to Article XIX of the GATS, WTO Members are committed to entering into further rounds of services negotiations. The first such round started in January 2000. The definition of services trade under the GATS is four-pronged, depending on the territorial presence of the supplier and the consumer at the time of the transaction. International trade in services is defined by the Four Modes of Supply of the General Agreement on Trade in Services (GATS). (Mode 1) Cross border trade, which is defined as delivery of a service from the territory of one country into the territory of other country; (Mode 2) Consumption abroad - this mode covers supply of a service of one country to the service consumer of any other country; (Mode 3) Commercial presence - which covers services provided by a service supplier of one country in the territory of any other country, and (Mode 4) Presence of natural persons - which covers services provided by a service supplier of one country through the presence of natural persons in the territory of any other country. The present paper critically examines these four modes of supply and evaluates the merits of the definition of services contained in the GATS Agreement.

Making Sense of Safeguards

The ASG was negotiated in response to the use of extralegal measures and inappropriate use of legal measures to restrict imports. More effective disciplines regarding implementation of Article XIX was recognized as an important unilateralism deterrent in policy implementation. These disciplines are subjective and objective. Disciplines that are quantifiable are more effective. Utilizing both balances rules and discretion. A home and foreign producer are used to assess SG in the context of adverse shocks. This framework entails a novel feature appropriate to SG. Firms are permitted to select optimal levels of downward flexibility in output in response to a possible shock. The extent of adjustment is directly related to the cost incurred. Firms choose flexibility in stage one and output in stage two. Without SG, firms will not insulate themselves completely from the conditional expectation of an adverse shock. Introducing the ASG increases the relative adjustment burden for the foreign firm.

Trade skirmishes safeguards: A theory of the WTO dispute settlement process

I propose a framework within which to interpret and evaluate the major reforms introduced to the GATT system in its transition to the WTO. In particular, I examine the WTO Agreement on Safeguards that has amended the GATT escape clause (Article XIX), and the Dispute Settlement Body (DSB) that resembles a court of law under the WTO. Using this framework, I interpret the weakening of the reciprocity principle under the Agreement on Safeguards as an attempt to reduce efficiency-reducing trade skirmishes. The DSB is interpreted as an impartial arbitrator that announces its opinion about the state of the world when a dispute arises among member countries. I demonstrate that the reforms in the GATT escape clause should be bundled with the introduction of the DSB, in order to maintain the incentive compatibility of trade agreements. The model implies that trade agreements under the WTO lead to fewer trade skirmishes but this effect does not necessarily result in higher payoffs to the governments. The model also implies that the introduction of the WTO court, which has no enforcement power, can improve the self-enforceability of trade agreements.

Trade Skirmishes and Safeguards: A Theory of the WTO Dispute Settlement Process

I propose a framework within which to interpret and evaluate the major reforms introduced to the GATT system in its transition to the WTO. In particular, I examine the WTO Agreement on Safeguards that has replaced the GATT escape clause (Article XIX), and the Dispute Settlement Process (DSP) that resembles a court of law under the WTO. Using this framework, I interpret the weakening of the reciprocity principle under the Agreement on Safeguards as an attempt to reduce efficiency-reducing trade skirmishes. The DSP is interpreted as an impartial arbitrator that announces its opinion about the state of the world when a dispute arises among member countries. I demonstrate that the reforms in the GATT escape clause should be bundled with the introduction of the DSP, in order to maintain the incentive-compatibility of trade agreements. The model implies that trade agreements under the WTO lead to fewer trade skirmishes but this effect does not necessarily result in higher payoffs to the governments. The model also implies that the introduction of the WTO court, which has no enforcement power, can in fact improve the self-enforceability of trade agreements.

The Legal Relationship between Special Safeguard Measures on Agricultural Products and General Safeguard Measures

The article addresses the question of whether a World Trade Organization (WTO) Member is permitted to simultaneously apply a special safeguard measure under Article 5 of the WTO Agreement on Agriculture (AGA) and a general safeguard measure under Article XIX of the General Agreement on Tariffs and Trade (GATT) 1994 and the WTO Agreement on Safeguards on the same agricultural product. The author argues that such simultaneous application is possible as a matter of law and proposes that the text of Article 5.8 be amended in order to refl ect this. That said, the author also acknowledges that in practice it would be difficult, if not impossible, to demonstrate that the conditions for the simultaneous application of these two measures on the same agricultural product are met.

Trade Skirmishes and Safeguards: A Theory of the WTO Dispute Settlement

I propose a framework within which to interpret and evaluate the major reforms introduced to the GATT system in its transition to the WTO. In particular, I examine the WTO Agreement on Safeguards that has replaced the GATT escape clause (Article XIX), and the Dispute Settlement Process (DSP) that resembles a court of law under the WTO. Using this framework, I interpret the weakening of the reciprocity principle under the Agreement on Safeguards as an attempt to reduce efficiency-reducing trade skirmishes. The DSP is interpreted as an impartial arbitrator that announces its opinion about the state of the world when a dispute arises among member countries. I demonstrate that the reforms in the GATT escape clause should be bundled with the introduction of the DSP, in order to maintain the incentive-compatibility of trade agreements. The model implies that trade agreements under the WTO lead to fewer trade skirmishes but this effect does not necessarily result in higher payoffs to the governments. The model also implies that the introduction of the WTO court, which has no enforcement power, can in fact improve the self-enforceability of trade agreements.

Imposition of Safeguard Measures and Unforeseen Developments

WTO has certain protective clauses which allow the Members to provide their domestic industry temporary respite from the rigors of free market. Provision for safeguard measures under Article XIX of the GATT 1994 and the Agreement on Safeguards is one such provision that allows Members to restrict imports if there is serious injury to the domestic industry because of increase in imports. However, as held by the Appellate Body, it needs to be proved that increase in imports has been the result of unforeseen developments. The article critically analyzes the provision of unforeseen developments as interpreted by the Appellate Body and then examines whether the decision of the Appellate Body was correct in the light of the negotiating process.

Unforeseen Developments – An Unforeseeable Future? The Relationship Between GATT Article XIX and the Agreement on Safeguards

View Unforeseen Developments – An Unforeseeable Future? The Relationship Between GATT Article XIX and the Agreement on Safeguards by Caroline Ormonde Driscoll - Legal Issues of Economic Integration

Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products

This study addresses the dispute brought to the World Trade Organization (WTO) by Argentina concerning certain Chilean measures affecting the importation of wheat, wheat flour, oil seeds, edible vegetable oils and sugar. The complaint by Argentina challenged two types of policies – a “price band system” that was applicable to four of those product categories, and safeguards measures that were applicable to three of them. The WTO panel ruled in favor of Argentina on both sets of measures. It found that the price band system violated Article IV of the Agriculture Agreement and Article II of GATT 1994. The safeguards measures, according to the panel, violated various provisions of the Safeguards Agreement, as well as Article XIX of GATT 1994. Chile elected not to appeal the panel ruling regarding the safeguards measures, but did appeal the adverse finding as to the price band system.

International restructuring, health and the advanced industrial state

International restructuring, health and the advanced industrial state

Chile – price band system and safeguard measures relating to certain agricultural products

This paper addresses the dispute brought to the World Trade Organization (WTO) by Argentina concerning certain Chilean measures affecting the importation of wheat, wheat flour, oil seeds, edible vegetable oils and sugar. The complaint by Argentina challenged two types of policies – a ‘price band system’ that was applicable to four of those product categories, and safeguard measures that were applicable to three of them. The WTO panel ruled in favor of Argentina on both sets of measures. It found that the price band system violated Article IV of the Agriculture Agreement and Article II of GATT 1994. The safeguard measures, according to the panel, violated various provisions of the Safeguards Agreement, as well as Article XIX of GATT 1994. Chile elected not to appeal the panel ruling regarding the safeguard measures, but did appeal the adverse finding as to the price band system. The Appellate Body subsequently affirmed in substantial part the finding that the price band system violated Article 4 of the Agriculture Agreement, but reversed the finding of a violation under Article II of GATT 1994. Chile has since indicated an intention to comply with the ruling, and an arbitration pursuant to Article 21.3 of the DSU determined that the reasonable period of time for compliance would expire on December 23, 2003.

THE PUZZLE OF WTO SAFEGUARDS AND REGIONAL TRADE AGREEMENTS

So far WTO jurisprudence has not resolved the puzzle of how WTO Members that are part also of a regional trade agreement (such as NAFTA or MERCOSUR) should conduct safeguard investigations and apply eventual safeguards in line with WTO rules. Can or must they exclude regional imports from the injury determination? Can or must they apply the eventual safeguard only to third parties, or are they under an obligation rather to apply all safeguards on a non-discriminatory basis? Those are the questions examined in this paper. The paper refocuses some of the attention to GATT Article XIX and criticizes the Appellate Body’s requirement of parallelism as well as its jurisprudence under GATT Article XXIV. It also offers an alternative way forward and ends with a list of options for WTO safeguards by members of customs unions or free trade areas.