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Rob Howse
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Dear Reinhard, I absolutely agree that a life-cycle approach makes the most sense conceptually to determining whether a good is "green." What I don't understand is your comment that undertaking such an analysis would be beyond the "mandate" of the negotiations, or the WTO altogether. One would have to draw on the expertise and standards of other bodies in order to do it-but such dependence is really no different in principle than the dependence on standardization and conformity assessment bodies and international standards for example in the liberalization norms of SPS and TBT, or on the IMF in certain matters related to trade, exchange rates and balance of payments. While the ideal would of course be to do the analysis for all products, i don't see why one couldn't begin with products that, based upon best evidence so far, would likely be the most obvious candidates. At least, it is a start. While I haven't seen a specific proposal to raise tariffs on "dirty" products, I myself have often made the point that the logical corollary of freeing trade in green products is disfavoring trade in dirty products, where the basis of such trade is the failure to internalize the environmental externalities in the price of the products. Removing subsidies or other advantages for dirty products that distort the relative prices of clean and dirty products and lead to inefficient trade in dirty products could be better than raising tariffs. But I do think that there is something illogical about having a negotiation in the WTO about liberalizing trade in green goods and not even talking about starting a negotiation on the reduction of fossil fuel subsidies. Sent from my iPad
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Thanks! 1) Is there any reason why the Decision would NOT be considered a "subsequent agreement' within the meaning of VCLT 31? What is there to consider here??? 2) Is there any way that a Member could be in "good faith" bringing an action that it has through this Decision formally pledged in writing not to bring? I don't see any complexity on these 2 issues. I agree though that the reference to IX:1 rather than IX:2 does raise an issue re IX:2. But 1 and 2 above don't depend on thay. Sent via BlackBerry from T-Mobile
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5.320 The sentence beginning "In this connection,..." Basically, the AB is not persuaded that the EU has pursued means by which its goal of protection of indigenous communities could be better reconciled with the overall goal of protecting seal welfare. Thus my suggestion that the EU charge a special independent panel or commission with the task of examining whether their are measures that could be taken to make Inuit hunts more humane.
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I am glad they changed the title from the one I saw. I found it hard to believe that you would have devised or approved that title so as you could see I attributed the article to you but mentioned the title separately as "absurdly misleading". What is the original publication you were writing for? I picked this up from an on-line service.
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Beliefs about how animals should be treated by humans may have religious or other spiritual or ethical sources. In many cases such beliefs have multiple such sources. It would hardly behoove an international organization like the WTO with a mandate centered on trade matters to decide what religious or other spiritual sources would be a valid basis for the beliefs that underpin the standards of right and wrong in the community, i.e.public morals.
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I agree that this is only one part of the back story. I also agree that had the EU banned all seal products regardless of the nature of the hunt or hunter, then the AB would have had to engage in more explicit reasoning of the kind we have in our article to explain why TBT is not applicable to non-instrumental moral regulation, given the problem of applying the "risk" concept in TBT 2.2 to such regulation, inter alia. This is not the first time that the AB grasped an opportunity based on convenient facts to shelter itself behind formalism. But also the cagey way in which the AB has dealt with the scope of TBT applicability where an obvious product characteristic is not the basis of the regulation, both in Tuna II and here in Seals, may be related to keeping certain options open to deal with plain packaging. Sent via BlackBerry from T-Mobile
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Dear Joost, since your final question is addressed to me, I will take the opportunity to comment. Jo Langille and I anticipated these issues with applying the public morals issue in our Yale J. Intl Law piece on the Seals dispute, and my response is more or less derivative from what we said in that article. First of all, we were rather more explicit than the AB in distinguishing between instrumental and noninstrumental dimensions of moral regulation. As was the EU in Seals. The instrumental dimension goes to preventing conduct or outcomes that are contrary to the standards of right and wrong in the community. In US-Gambling, the US for example justified its measure under the GATS equivalent of XX (a) in terms of preventing certain outcomes, such as underage gambling, growth of organized crime etc. In Seals, one of the public morals dimensions that the EU raised was reducing the number of seals killed inhumanely. This instrumental dimension can indeed be assessed through analyzing the contribution of the measure to the objective using the tools developed by the AB in Brazil-Tyres among other cases. But another aspect of moral regulation is what might be called expressive-simply indicating moral disapproval for something the community, as reflected in its authoritative voice, regards as intrinsically wrong or unacceptable. The Seals ban had this aspect as well as the instrumental aspect, and it is here that we run into trouble trying to use an instrumentalist framework. Consider bans on food products based upon dietary prohibitions in religious law. It is obvious that not all WTO Members are liberal democracies with US-style separation of church and state. Is the AB really going to start inquiring into whether cows really have the status attributed to them by Hindus, or whether it is justified that Jews and Muslims have the beliefs that they do concerning pork, for example? In our article, we address the concern you raise about how then to ensure that the measure is genuinely or sincerely directed towards public morals rather than being protectionism with a public morals pretext. One suggestion we have is to look to the form of the measure-is it a ban that applies to both domestic and imported products or is it targeted at imports? It will be easier to show the genuine public morals nature of the regulation of alcohol if it is in the form of a ban that affects negatively significant domestic commercial interests, than for example a state liquor monopoly that is making profits hand over fist, and favoring domestic producers of alcoholic beverages. In other words, even if non-instrumental moral regulation, the WTO adjudicator must still ensure that the regulating Member is acting in good faith in declaring a public morals purpose for its measure. And then, as the AB report in Seals illustrates, there is also the chapeau. It is fairly likely that a measure that is really protectionist but being given a public morals pretext will violate the chapeau in the manner in which it is applied.
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Joost this is very interesting and helpful. I agree that the best way of characterizing the AB reasoning on this issue in Seals is that there must be some limit on what product characteristics means-but we are not going to tell you what exactly it is, so we have some leeway to decide on whether TBT applies on a case-by-case basis, taking into account a range of considerations. Also re Tuna II, they really gave no reasoning as to why TBT did apply, i.e. no real interpretation of the second sentence or that they were relying on that. Indeed given the way they had to characterize the US measure in order to consider it as having the requisite mandatory aspect (i.e. a prohibition on other labels using "dolphin-safe", it isn't obvious that the second sentence would apply. But my main point re Seals is that the decision the AB made that TBT does not apply is not well-motivated if you look at their explicit reasoning about the text of TBT, but when you see that they think it is awkward or almost impossible to think of justification of a public morals measure of a certain kind in terms of the assessment of risk, as is required by TBT 2.2, you might have a better sense of why they chose to draw the line in this particular case. Because if they had wanted to, the text of TBT would give them ample basis to say that this was a product-related PPM. On this see my blog post on the questions of the AB at the hearing on the issue of TBT applicability. Indeed, the position you seem to take here on what is a product-related PPM is one that I have long held it should be reflected in the now published I believe Crowley/Howse article on Tuna II). There is no reason to assume that product-related means related to physical characteristics or properties physically embedded in the product. Rather it means as you suggest that the regulation affects trade in a specific product. This is important as the TBT Agreement is a lex specialis of the GATT, and PPMs unrelated to trade in goods may appropriately be considered under other agreements (services, TRIPs). I think that Gabrielle Marceau also has taken a view like this in her writing on TBT but I may stand to be corrected. My understanding of the AB in Cloves etc. is they want to interpret both agreements so that neither is tougher than the other-the same or similar balance between right to regulate and trade liberalization: in other words, how do we get to the same result, given the different architecture and wording? In Seals-you may have seen one of my earlier posts that addresses this-the AB glossed over the problem of the "closed list" in Art. XX. They seem to be saying that they will worry about squeezing in a policy objective not explicitly mentioned in one of the paragraphs when we have to face that situation. I suppose it can be said on their behalf that XX (a) and XX (d) are pretty capacious, when interpreted imaginatively. It is hard not to see TBT 2.4 as additive to GATT, as well as potentially quite limiting of regulatory diversity in a way in which the GATT is not. But in Tuna II the AB basically kneecapped 2.4 by imposing what could be read as quite strict criteria for what is an international standard or standardization body within the meaning of 2.4. In the real world, almost every international standardization body or standard might fall somewhat short of one of these criteria, depending on how they are interpreted. So if I were a complaining state, I wouldn't put any big bets on a win on 2.4. Finally, while apparently (most clearly in Seals) making III:4 "tougher" to me at least it is very clear from Brazil-Tyres that there has been a movement towards viewing Art. XX "necessity" as a fairly open-ended or wholistic reasonableness test, with some element of proportionality, but a great deal of deference to choices of regulatory design in the face of uncertainty about risk and the relative effectiveness of different components of complex regulatory strategies. Compared with the old days-take GATT Thai-Cigarettes for instance-this is almost a revolution. The AB has crafted a number of techniques for doing a nimble but not very graceful dance around the doctrinal and political red flags in controversial cases. This is why, if very dissatisfying to the taste of a public international lawyer or indeed a public lawyer looking for a reasoned structure to jurisprudence, their corpus of decisions has preserved if not on the whole enhanced I believe the legitimacy of the dispute settlement system and certainly contributed to the legitimacy of the WTO as a whole, where it has been under threat on other fronts. Sent from my iPad
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A footnote to my previous comment. One problem with this hypothetical is that it is quite likely that that there are some differences in physical characteristics between automobiles with significantly different fuel efficiency properties. Also there are differences in consumer tastes and habits as well-as one can see from the way that cars with high fuel efficiency are advertised and marketed they appeal to a particular sub-set of consumers concerned about that for economic and/or environmental reasons. So it may be hard to imagine the finding of likeness hear that would then lead to a consideration of detrimental impact.
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If the definition of "gas guzzler" is based on the fuel efficiency characteristics of domestic automobiles at the time the measure is adopted, there is likely a violation because the detrimental nature of the impact on imports is traceable to this design feature of the measure, i.e. the threshold of fuel efficiency below which a vehicle is deemed a "gas guzzler." In addition that the definition has been set in such a way that all currently produced domestic automobiles meet it and no foreign produced ones do, raises a suspicion if not a presumption of protectionism. This is a bit like the old Canada Beer case where the minimum price at which beer could be sold in some Canadian provinces was set on the basis of the costs of domestic producers of beer. There would also be a violation arguably if these were originally fuel efficiency standards that were mandated for domestic PRODUCTION of vehicles and domestic manufacturers had been given a significant period to adjust to them, or even subsidies or compensation for having to meet the higher standards. Again the detrimental nature of the impact on imports is traceable to specific design features of the measure, namely that it now imposes, at least indirectly, on foreign manufacturers, fuel efficiency standards to which domestic manufacturers have already had a chance to adjust.
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Yes, Simon, I think this is what would be involved in determining under the AB's III:4 approach whether the detrimental impact is attributable to the measure, i.e. a genuine relationship between the detrimental impact and the design, structure etc. The extent to which the AB has assimilated in this decision the legal standard under I:1 and III:4 is remarkable. Sent via BlackBerry from T-Mobile
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I agree that after Seals any inquiry into regulatory purpose under III:4 is finished, even in the objective sense indicated in Chile-Alcohol with respect to III:2. My point is different-that now the focus has to shift to the causal relationship between the detrimental nature of impact on imports and specific design or structural features of the measure (as opposed to its purposes), vs. alternative casual explanations. The remarks about the relationship between III:I and III:4 in Seals appear to contradict EC-Asbestos, at least in spirit. I also think that the AB's reading of III:4 in Seals cannot be sustained under the Vienna Convention on the Law of Treaties. It replaces purpose and object with a concept that is important in the jurisprudence, and which I agree has a vital role to play, equality of competitive opportunities, but which is not embedded in the treaty itself, while ignoring or marginalizing object and purpose as disclosed by the preamble to all of article III, III:1:anti-protectionism. Even more of a shambles from a VCLT point of view is to make competitive opportunities the overarching or fundamental purpose of GATT I:1. Still to give a hint of what I may be writing up with my co-authors this weekend, by screwing up National Treatment and MFN, the AB has actually enhanced its legitimacy. If they hadn't screwed it up, and then completed the analysis where possible, or found violations of DSU 11 where the panel was incoherent or totally negligent about the facts, there would have been no finding of violation and there would have been no obvious opportunity to affirm that animal welfare is a matter of public morality and that the WTO provides in article XX a safe haven for regulations that address that. (Though I suppose they could have done like in Asbestos, arguably) A finding merely of no violation would have been in theory an even bigger victory in terms of affirmation of policy space, understood doctrinally, but upholding the public morals ruling was better symbolically, I think. The AB Members here are not great public international lawyers, that's more than evident from the botch up with MFN and National Treatment, but they do have a good sense of what is needed to preserve or enhance the legitimacy of the DS system and thus the WTO as a whole. Perhaps that's better than some of the investor-state tribunals where leading public international lawyers in some cases crafted decisions that have done huge damage to that regime's legitimacy. Enough for now. Have a great holiday weekend, Rob. Sent via BlackBerry from T-Mobile
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I agree that after Seals any inquiry into regulatory purpose under III:4 is finished, even in the objective sense indicated in Chile-Alcohol with respect to III:2. My point is different-that now the focus has to shift to the causal relationship between the detrimental nature of impact on imports and specific design or structural features of the measure (as opposed to its purposes), vs. alternative casual explanations. The remarks about the relationship between III:I and III:4 in Seals appear to contradict EC-Asbestos, at least in spirit. I also think that the AB's reading of III:4 in Seals cannot be sustained under the Vienna Convention on the Law of Treaties. It replaces purpose and object with a concept that is important in the jurisprudence, and which I agree has a vital role to play, equality of competitive opportunities, but which is not embedded in the treaty itself, while ignoring or marginalizing object and purpose as disclosed by the preamble to all of article III, III:1:anti-protectionism. Even more of a shambles from a VCLT point of view is to make competitive opportunities the overarching or fundamental purpose of GATT I:1. Still to give a hint of what I may be writing up with my co-authors this weekend, by screwing up National Treatment and MFN, the AB has actually enhanced its legitimacy. If they hadn't screwed it up, and then completed the analysis where possible, or found violations of DSU 11 where the panel was incoherent or totally negligent about the facts, there would have been no finding of violation and there would have been no obvious opportunity to affirm that animal welfare is a matter of public morality and that the WTO provides in article XX a safe haven for regulations that address that. (Though I suppose they could have done like in Asbestos, arguably) A finding merely of no violation would have been in theory an even bigger victory in terms of affirmation of policy space, understood doctrinally, but upholding the public morals ruling was better symbolically, I think. The AB Members here are not great public international lawyers, that's more than evident from the botch up with MFN and National Treatment, but they do have a good sense of what is needed to preserve or enhance the legitimacy of the DS system and thus the WTO as a whole. Perhaps that's better than some of the investor-state tribunals where leading public international lawyers in some cases crafted decisions that have done huge damage to that regime's legitimacy. Enough for now. Have a great holiday weekend, Rob.
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Well, Simon, the AB did not overrule itself re DR-Cigarettes. Clearly, there was a detrimental impact in DR-Cigarettes, the higher per unit cost of satisfying the bond requirement that was faced by the producer of the like imported products. So the only coherent explanation of what the AB was dong in this case, which is consistent with its ruling in Seals with the rejection of "legitimate regulatory distinction" is that they were saying that, to find a violation, the detrimental impact has to be attributable to the design, structure etc. of the measure, rather than to other causes or factors. Of course, in DR-Cigarettes, the measure had an impact in that obviously if there were no bond requirement at all there would be no effect at all on the complainant. But the detrimental nature of the effect vis a vis imports was not a function of a design or structural feature of the measure but an extraneous factor, the volume of business relative to domestic producers of like products. Thus, the logic is that the adjudicator must ensure that the detrimental nature of the impact in relation to the like imported products is genuinely attributable to the design, structure etc. of the measure. My point is that this will normally entail examining whether there are other possible causes to which the detrimental nature of the impact on imports may be attributable. I wholly agree with your bottom line in this post. And perhaps so do some AB Members. Hence, DR-Cigarettes was allowed to stand. Sent from my iPad
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Thanks for your comment. I don't mean at all to trivialize or downplay the importance of the panel's finding that that the EU seal ban is justified under the public morals exception. This is a significant protection for animal welfare law going into the future. And in commenting on the case Langille and I have said just that, for example in op-eds. As for our original article, it dealt with many issues in WTO law that required particular consideration when assessing a measure in significant part driven by non-instrumental moral concerns. The nature of the public morals exception was one of them; whether TBT applies to the non-instrumental moral aspect of a measure like this was another; in fact the discussion of XX (a) in our article occupies relatively few pages. What concerned me with the journalist's report is that it gave the impression that policy space for a high level of protection for animal welfare under WTO depended upon the application of the public morals exception almost exclusively (as well as some of the comments attributed to Brendan McGivern suggesting public morals had never really been successfully argued in WTO litigation). Non-discriminatory regulation of animal welfare, like other non-discriminatory regulation, should not require justification under Article XX of the GATT. The panel's findings of discrimination (MFN and National Treatment) are highly questionable, and that is an important issue on appeal. The panel was dealing with a ban and exceptions that are de jure completely neutral or evenhanded with respect to the national origin of the products. The grounds for the panel finding de facto discrimination are very poorly articulated in the panel report and quite suspect (as Langille, Sykes and I explain in our amicus brief). And (to add to my original post) the TBT issues loom large as well. I know these are challenging matters for journalists to write about, and my intention was not to blame the author of the report, but rather to suggest that it didn't really communicate to the public the range of important issues that is at stake in the case. Finally, one of the most important aspects of the dispute from the perspective of the future of the seal hunt, is that the panel found that the hunt as carried out in Eastern Canada and Norway does involve the inhumane killing of seals and that there is no available viable means of eliminating that inhumanity as long as the hunt continues. These are objective findings of fact based upon an extensive record of evidence and assessment of testimony of experts on all sides. Because of the limited ambit of appellate review in the WTO, these are findings that will remain there whatever the AB does on the law.
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It seems to me that the Inuit are victims of Canadian government policy, not the EU ban. The whole sealing industry in Canada-if one can call it an industry-is constructed by the interest of politicians in playing to a certain kind of very low level nostalgic regional sentiment in Eastern Canada. It is the worst kind of pandering. Instead of a rational industrial policy, provincial and federal governments inject a sort of heroin, creating a temporary seasonal high, a delusion that East Coast people whose ancestors who survived from sealing (my grandfather Jesse Winsor was one of those, a sealing vessel captain) will forever more be able to do it. This industry is a goner. All that is left is a bunch of politicians making a bunch of people who should be earning a living another way think they are local heroes because they are defying the world community, and its disgust at the cruelty of the hunt, in the name of some kind of tradition. And who profits from the heroin sales, so to speak-as far as I can gather, only the Carino company, basically when you look closely, a Norwegian family company which has been taking to the bank Canadian government support that could have been used to promote economic and social development in Inuit communities. To me the real question is how the politicians got the Inuit leadership elite to buy into this racket-what kinds of promises, threats or misrepresentations? So when you talk about "non-profit" stop to think that this whole business is really just a construct of Canadian government policies of the most cynical kind. The only real market signals here are those of consumers around the world who increasingly don't want these products. Sent via BlackBerry from T-Mobile
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Dear Armand, the EU cannot be blamed for the dramatic decline of consumer demand for seal products. This is not just an EU trend. How can any reasonable version of WTO law and doctrine require that the EU make people buy seal products from indigenous people in Canada? The exception in the EU ban provides non-discriminatory market access for Canadian indigenous seal products as you seem (grudgingly) to admit. If these products were to be refused access to the EU, that would be another matter. But you are inventing a trade barrier that doesn't exist. Look again at the evidence in the case (I realize that having attended the panel hearings I have had more exposure to it than you-or were you also in attendance? I didn't see you) Rob Sent via BlackBerry from T-Mobile
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Dear Armand, you have clearly been taking your own advice to other trade lawyers and not following this case. The EU ban poses no obstacle to the ability of the Canadian Inuit to export what is left over from their subsistence hunt into European markets. The exception in the EU ban for indigenous products is crystal clear-it is non-discriminatory and it does not contain any unusual or burdensome conditions that would make it impractical for the Inuit to export to the EU. The point of my post is not to oppose the subsidy program that the Canadian government hid until the conclusion of the Appellate Body hearings but that this program represents an admission that contrary to what Canada had been telling the WTO dispute settlement organs, there is no inherent difficulty with the Canadian Inuit exporting seal products, which would make it somehow inherently un-evenhanded to exempt indigenous products, since only Greenland indigenous people have the intrinsic POSSIBILITY of using the exception. Canada has in the past chosen to subsidize heavily the commercial non-indigenous hunt while until recently doing little to facilitate export promotion of indigenous seal products. That is a policy choice of Canada. It is not a choice of the EU. Your suggestion that the Canadian Inuit are in a difficult situation because of the EU ban suggests that prior to the ban the Canadian Inuit were earning significant revenue from selling their products into the EU. While the Canadian government has managed to get Inuit leaders to attack the ban, how difficult is that given the level of dependency of these communities on the federal government in all kinds of ways? In the WTO proceedings the panel never made a finding of fact of this kind. Nor was there any evidence of this sort on the record, as far as I could see. Indeed there is evidence that the Nunavut government itself recognized the underlying challenge not as the EU ban but one of market demand generally. It is also revealing that while towing the federal government line Inuit leaders did not make a submission of their own before the panel, nor did Canadian take the risk of calling as a witness any from the Inuit community involved in the hunt. Contrary to what you imply the EU ban has not benefited the Greenland Inuit industry. They oppose the ban and attribute a significant decline in their own exports to its broader impacts. In Canada's tale were true about how the ban give its indigenous exception affects competitive opportunities, the Greenland industry should love it because they would be gaining as European consumers shifted from banned Canadian commercial seal products to permitted Greenland indigenous ones. But the reality is entirely different as what Canada would lead us to believe. But your mention of Denmark and the EU Council raises one the fundamental flaws with the panel's determination of an MFN violation in respect of the indigenous exception-the panel's complete failure to analyze whether Greenland should be treated as a non-EU country for purposes of WTO law. Sent from my iPad
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Dear Simon, this is exactly what happens when one ignores the structure and text of Article XX and the division of labor that follows from it, as understood by the AB in for example US-Shrimp: the chapeau concerns the application of the measure whereas the tests for "fit" within each paragraph of Article XX are addressed to its design, structure etc.
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Dear Julia (and Lorand), Let's for a moment separate the question of whether the distinction between the design, structure etc. of a member's measure and its application is to be understood formalistically or not from the question of whether the distinction makes sense at all in terms of understanding the respective roles of the chapeau and the operative paragraphs of Article XX. I believe that some meaning has to be given to the word "applied" in the chapeau, but of course that meaning need not produce an entirely formalistic test for what is a measure and what is the application of the measure. Nevertheless the distinction make sense. With respect to the design, structure, etc of the measure itself, in the case of most of the paragraphs of Article XX, we test for whether it has features that are arbitrary and unjustiable in their trade effects by examining the "necessity" of its trade restrictiveness. How could a measure itself properly be found to be not unnecessarily trade restrictive and still constitute arbitrary or unjustifiable discrimination? In the case of Article XX (g), while the world "necessary" is not present, there is an explicit evenhandedness test within XX (g). It should be recalled that, in US-Shrimp the Appellate Body (rightly in my view) specified that one must examine the measure first under one of the paragraphs of Article XX, and then apply the chapeau. This sequencing means that measures that are arbitrarily or unjustifiably restrictive in their trade effects will not be provisionally justified. Only once the measure itself passes, will there then be the question of whether, even if provisionally justified, the way it is applied the violates the quite specific evenhandness test in the chapeau. I see some analogy here also to the distinction between "as such" claims (where violation is claimed to stem from the design, structure etc of the measure) and cases where the violation comes from the exercise of discretion in its application. Sent from my iPad
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Yes, glad you agree! Sorry I got so misled by the references to subsidies-slightly jet-lagged in Buenos Aires. Sent via BlackBerry from T-Mobile
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Yes, glad you agree! Sorry I got so misled by the references to subsidies-slightly jet-lagged in Buenos Aires. Sent via BlackBerry from T-Mobile
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Good. Understood! Of course that is right -subject to the continuing permissibility of course of self-help through CVD AD actions. Sent via BlackBerry from T-Mobile
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Also, Marc, the policies that determine the size of the Canadian commercial industry are not just direct and indirect subsidies but also the quota for the hunt and the licensing of sealers. Amities, Rob Sent from my iPad On Mar 21, 2014, at 8:33 AM, Rob Howse <howserob@gmail.com> wrote: I am not sure how to understand the relevance of this. I think Canada's subsidization of the commercial sealing industry but not the indigenous sealing industry is only of concern here because it relates to the source of the treatment less favourable being complained of by Canada-the proportion of the Cdn industry that can use the indigenous exception, being the creation in large part of Canada's own policies. I don't think of this as a defense of the EU because it rather goes to what is the meaning of treatment less favourable. Can a neutral measure without any element of de jure discrimination be treatment less favourable just because the complaining government has chosen to determine the structure of the market such that it has a larger percentage of production or economic actors that can take advantage of the measure than is the case with some other country or the regulating country? This seems to me to be a very different question than the one you raise about subsidies wars, but am I missing something, Marc? Sent from my iPad
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I am not sure how to understand the relevance of this. I think Canada's subsidization of the commercial sealing industry but not the indigenous sealing industry is only of concern here because it relates to the source of the treatment less favourable being complained of by Canada-the proportion of the Cdn industry that can use the indigenous exception, being the creation in large part of Canada's own policies. I don't think of this as a defense of the EU because it rather goes to what is the meaning of treatment less favourable. Can a neutral measure without any element of de jure discrimination be treatment less favourable just because the complaining government has chosen to determine the structure of the market such that it has a larger percentage of production or economic actors that can take advantage of the measure than is the case with some other country or the regulating country? This seems to me to be a very different question than the one you raise about subsidies wars, but am I missing something, Marc? Sent from my iPad
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