Thanks for clarifying-you are right that I misunderstood your reference to "conspiracies". best, Rob

Yes it does. These are the agreements I was referring to in that earlier post, where I shared the hypothesis of a well-informed EU expert that the EU, in blocking the African candidates, was punishing some African countries for having stalled until now on EPAs with the EU.

Style rather than content? I see. In other words if you are a neo-colonial anti-Semite (your words) then be discreet about it.

Debra, yes I could have been more precise-Fried's formal title was of almost untweetable length so I went with lower case c and n. My impression, no disrespect meant to John Weekes, was that Fried was the key person for Canada in brokering the legal text that sealed the deal. Am I wrong? Or perhaps you are making the larger point that Fried's role was not one that would have put him in a position to develop a close relationship with Blanco. In which case, my hypothesis would of course be wrong, and that would be good to know. Fried is an outstanding lawyer-I first encountered him when I was on the policy planning staff of Canada's foreign ministry at the very end of the Trudeau era. He certainly would have clearly understood that by breaking the "four preferences" rule the EU was also circumventing the fundamental prohibition on "negative preferences". Why would he have gone along with such a move, undermining the legitimacy of the whole process?

I have to read the article, but in somewhat different language, it seems to me that this is what the AB has done essentially in US-Cloves, adding the consideration of "legitimate regulatory distinction" to the analysis of treatment less favourable. The question is whether that approach was already implicit in EC-Asbestos paragraph 100 and in Dominican Republic-Cigarettes. We need to worry less about how narrowly or broadly the net is cast in determining detrimental impact if detrimental impact is not conclusive of treatment less favourable and there is a further step of determining whether the impact is exclusively due to a legitimate regulatory distinction. But getting ahead of myself-will give it a close read.

Actually, I agree there were myriad causes etc. Thats why I chose the phrase built not derived or determined. Strausss reading of Burke can stand or fall on its merits. But I do think it is brilliant of Strauss, who is addressing what is in many respects an audience with conservative sympathies, to point out those tendencies or possibilities in what they might regard as soundly conservative or moderate thinkers that actually contributed to a further radicalization of modernity and to its excesses, arguably. A discuter, ne cest pas? Thanks for your reaction.

It is true that the authors in their comparative survey conclude that the WTO is more transparent than a number of other international fora. However, emphasizing this finding might give the impression that the thrust of the article is to defend the status quo regarding transparency at the WTO. On the contrary, the actual conclusions or recommendations of the authors point to the need for further improvement: for instance, as they note the practice of making public submissions in WTO disputes is even today far from widespread (except for the US and a few others who disclose pleadings regularly; even the EU only does this after considerable delay in many cases).

Dear Bryan, I look forward to reading both pieces. The point about EC-Asbestos was that there is no reason to think that the AB was really concerned with at what point in the life cycle of the product the risk materializes as long as a significant number of consumers care about it and if they had the information needed to choose would distinguish between products that contribute more or less that risk. About evidence of consumer behavior, you raise a good point. Not yet clear what the AB thinks would be required. Of course, the burden of proof is on the claimant to make a prima facie case that the products are like. In EC-Asbestos, the AB did not of course depend on rigorous empirical studies, but rather axiomatic or common sense reasoning about what an idealized fully informed rational consumer would be influenced by. None of my comments in our exchange relate to the aspects of California's scheme you mention in relation to Article XX. Based on your summary of the facts, I'd say there is a serious MFN issue-treating a product differently based on the historical market share of the WTO Member from which the product originates does seem to be discrimination on the basis of national origin (I think the logic of Canada-Autos applies fairly well to these facts as you set them out, just as US-Reformulated Gasoline would support your view on XX). But the devil is in the details, and I am keen, as I say, to read your piece in full. Rob

Dear Jari, Thanks for your response. In fact in do not "stop" at environmental protection. I think that non-discriminatory measures based on labor standards and human rights are fine too. In a recent piece with Joanna Langille on the Seals dispute (it is available on SSRN) we draw exactly the opposition conclusion from the idea of the WTO system as one that is "values-neutral" or as we put it based on moral pluralism: namely that every WTO Member should be able to control what is produced or sold on its territory, based on the values of that society, provided that its controls are evenhanded as between imported and domestic products, and between the products of different WTO Members. Thus if WTO Members were NOT able to distinguish products based on the values of those individual societies "value-neutrality" as you put it would be undermined in fact. Rob

Bryan, Where is this piece being published? The way in which you distinguish EC-Asbestos assumes that it somehow mattered to the Appellate Body that the risk associated with asbestos manifested itself at the consumption stage. But I see no indication of that. Remember in EC-Asbestos the health risk that concerned the Appellate Body was not primarily a risk to the 'consumer' i.e. the construction company purchasing the asbestos, but to those exposed to it downstream from such consumption, such as workers, occupants of buildings, etc. On this logic there is no reason why a consumer could also not have preferences concerning the risks a product creates upstream, also-i.e. at the production stage. Of course, consumers can have preferences about how a product is made. There are many attributes of products that concern consumers that cannot be verified by physical inspection or observation at the time of purchase. Remember in EC-Asbestos the health risk that concerned the Appellate Body was not primarily a risk to the 'consumer' i.e. the construction company purchasing the asbestos, but to those exposed to it downstream from such consumption. the Are you really saying that in all these cases, such attributes are irrelevant to determining consumer preferences with a view to establishing likeness? That seems like an extreme result.

Dear Simon, Yes, we are agreed. But this is a possibility that seemed obscured or overlooked by Larry's statement of the jurisprudence. In addition, though I am no petroleum engineer, I am much less confident than Larry that one cannot find that there are also physical differences between oil from oilsands and other hydrocarbons. I'm looking into that. There are studies that identify different physical properties but I need expert help to understand what they really say (should have done some science in college!) Rob

With all respect to Larry, I do not mean to rehash writing I have done over the last 15 years about how the product/process distinction is nonsense and no basis in WTO law, but I cannot resist at least mentioning the EC-Asbestos case, where the Appellate Body held that the difference in health impacts between two products was relevant to whether they could be considered like, from the perspective of consumers. I see no difficulty in the Appellate Body holding that two products are unlike to the extent that one makes a greater overall contribution to the likelihood of a planetary catastrophe than the other. I think it would not be hard to document, based on polling data and evidence of consumer behavior, that many consumers in the EU would view products differently on such a basis. Moreover, as the Appellate Body indicated in paragraph 100 of EC-Asbestos, it is still possible to make regulatory distinctions between products that are like, provided that, overall, the distinctions in question do not afford "less favorable" treatment to the "group" of imported products based on their national origin. Here one would have to consider cases such as DR-Cigarettes. The meaning of "less favorable" treatment is also relevant to any MFN claim concerning oilsands-the adopted panel ruling in Canada-Autos makes it clear that conditions can be imposed on imported products provided that these conditions do not lead to better treatment of some products on the basis of what WTO Members they originate from. (An approach also followed in Columbia-Ports and US-Poultry (China). In other words, IF the differential effect is strictly a function of the application of an objective, unbiased methodology to determine the relative life cycle carbon footprints of different products, this effect constitute "less favorable treatment" within the meaning of either Article I or Article III of the GATT. Of course, Canada might try to argue that there is some structural bias in the methodology or its application, i.e. that it is "loaded" in some way against non-EU economic actors, or in favor of some particular sub-set of WTO Members. IF Canada can prove that on the facts, then there it may be able to establish "less favorable" treatment, because this concept does extend to de facto discrimination. But this of course assumes "likeness" could be shown in the first place.

I don't want to misunderstood here. Dispute settlement as a legal right is a major achievement of the WTO system. But cases like Asbestos and Seals represent the use of the system as a last resort to try and shore up industries that are in decline for good reason (and certainly in the case of sealing would not exist apart from state support). I also do think it is a concern where the real dispute is not with the actual defendant but where the litigation is aimed at warning off other countries, who may be making imminent decisions about their policy directions and may have less experience and capacity to defend a major WTO lawsuit, and where there is less knowledge about the flexibilities in WTO law on the part of politicians and NGOs in some cases. But I think we are agreed that the strategy of frustrating the composition of the panel in a case that one has brought to the WTO does pose a real issue under the DSU. Thanks for the exchange, Rob