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Rob Howse
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To be clear, I didn't make the empirical claim you state: I only offered that it was one possibility that Sanders would be crushed the establishment, and played out that possibility. I intended it to be obvious that, in fact, I do not think anything is so hopelessly rigged and so it is entirely possible that Sanders could still win. I refer to narratives being constructed, and perhaps that was too subtle a way as signalling a certain distance from the claims in question-certainly, I don't have the kind of evidence that would allow be state that claim as a scholarly matter with any confidence at all. Also, I do emphasize that there are voters to whom Sanders and his movement simply doesn't appeal for good, understandable reasons. Thus, I don't buy into the story that but for the opposition of the establishment, he would be the obvious winner, either of the nomination or the general election. It is possible that Sanders might have lost in a normal nomination fight, without the establishment making efforts to shut him down early, or taking sides so blatantly. But if he does lose this is not now how it will be perceived by a very large, politically relevant part of the progressive voter population. I am willing to concede that my analysis might be different if the focus were on racial divisions between supporters of the different candidates. Because of certain normative commitments I have, and certain experiences also in other countries, I simply won't engage in a racialized discourse about politics. Of course, a highly debatable position. I mention it only to explain that I'm not omitting that analysis for result-driven reasons of not wanting to face "realities" harmful to my case.
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Thanks. Basically, what Schengen enables is eliminating, more or less, border controls. If Schengen collapses, border delays will affect trade in goods in significant ways.
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Marc, I agree with you more than you think. I don't particularly think of the divide as "ideological" in any strong sense of the word. It's true that sometimes the AB gets overloaded but often the only have a couple appeals on the docket. There aren't many nonlawyers on the AB though I agree with your implication that there should be none. Thanks for engaging. Rob Sent from my iPhone
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Simon, yes, but I believe only beginning with the 2004 US model BIT. The previous US model BIT on which many of the actual agreements by which the US is bound is based, did not have "considers". Take a look at Article X of the 1984 US model BIT. But you raise a very important point in regard to going forward, one which supports my proposal for specific language in TTIP and TPP.
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To be clear, the Saudi's have responded with cautious optimism to the diplomatic route. politi.co/1y3NaFb Of course, and this goes to my point about permanence, we do not know yet the future and especially the longer-term future so why would they not hedge their bets? But why would a period of verified restraint of Iran's nuclear program affect their conduct in the direction of making them more likely to go nuclear, given their generally positive reaction to the deal? I do think economic sanctions are at the center of the debate that Kissinger and Schultz are entering. Though I admit that in this one particular post of mine they aren't the major theme. To be continued.
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Jari, you are entirely correct about the preliminary understanding set out in the State Department press release I cited. My concept of "parallel unilateral declarations" was intended to refer to one possible way of conceptualizing a final Plan of Action that may be negotiated between now and the end of June. Thanks for giving me an opportunity to clarify this. Best, Rob
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I tend to agree with your comments about US behavior around TRIPs and TRIPS-plus issues. I hope that the importance of moving to a more positive space in the US-India relationship will counteract to some extent the influence of the pharma lobby. At worst, India could take thevUS to dispute settlement to hold it to the principles in the S 331 decision. Thanks for your response. Sent from my iPad
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If the drafters had wanted, they could easily have simply said that the actions in question must be taken by the General Council by July 31. But they didn't. Instead they required that the General Council meet for this purpose by July 31. There is simply no language in the decision that states that the meeting must achieve this purpose by July 31. There is certainly nothing there that would preclude or prohibit the General Council from continuing to meet after that date. Nevertheless, if one wants to read the decision in a teleological manner then one could say that it implies an obligation to take whatever action might be needed to facilitate acceptances of all WTO Members by the deadline of the end of July of 2015. This would be the obligation of result. And this seems to me consistent with not arbitrarily ending talks at midnight on July 31. Indeed, if we take seriously the decision as an obligation of result along these lines, then cutting off the talks and declaring an impasse would be be undermining that obligation of result. Sent from my iPad
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Dear Tom, I can see how India could appear to some people to be "someone who tries to eke just that little bit more out". Wasn't after all the very purpose of negotiating a peace clause with no expiry date to allow India and others legal security while the process of working out a permanent deal on food security took its course? But there is a back story here, which I alluded to in my reply to your previous post. India somehow became convinced that it had been hoodwinked at Bali-the final peace clause text was drafted deviously so as to not give India the immunity from suit that it had been seeking. Some persons-I've speculated on their motives-obviously wanted to make India feel insecure once again about its food stockpiling practices. Some comma or wording in the clause became the equivalent of the handkerchief in Othello. It was all too easy to convince Indian officials they had been cheated, just as it was easy for Iago to convince Othello. Like Othello, India was a little insecure-perhaps it couldn't quite believe in the apparent power it had at Bali to win the peace clause it needed. Indian officials were thus easily infuriated when they read (albeit frankly very poor quality) arguments that the peace clause was not a solid legal protection. Once one understands this back story, I think there are several things that can be done. First, a group of professors of WTO law like myself could sign an open letter or legal opinion, refuting the view that the Bali peace clause is not solid. Second, through unilateral declarations, the US and the EU to begin with could indicate that they will refrain from bringing challenges in dispute settlement against India's food stockpiling or food security measures, as is required by the Bali peace clause. Unilateral declarations are binding in international law provided they are made in a certain manner. This was recognized by the adopted WTO panel report in the US-Section 301 dispute, and has also been accepted by the International Court of Justice. In Shakespeare's tragedy it was too late once Othello saw the handkerchief. But here with a little imagination there is the possibility of rebuilding confidence in a deal that India, and its negotiators, worked hard to secure at Bali. Rob
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India claims it has made a constructive proposal and that i wants the time to have a chance to bargain on that basis. While I don't doubt your sense of the mood in Geneva, I would reiterate that India didn't just show up at the meeting and try to surprise everyone-they had been making noises about their concerns for a while-in fact, I generally tweeted these stories, and took them quite seriously. Part of the problem is lack of progress on a permanent solution for food security. Another is that some people have been spreading the notion that the Bali peace clause is not legally watertight. This may have led to the view of some Indian officials that they were somehow cheated or tricked in the last-minute Bali drafting. I've responded to these noises, from people in the free trade fanatic camp who were sore losers that India won so much at Bali, on this blog. I have no doubt that the WTO AB would interpret the peace clause in such a manner as to give full effect to the policy flexibilities that India was seeking.However, there are others, maybe connected with Big Food maybe not, who might have seen the change of government in India as a window to put pressure on its food security policies, and part of that pressure could have been the idea that the Bali peace clause was a kind of loose political commitment and India still risked being hammered in dispute settlement if it didn't move in a different direction on food security. Boy did that little tactic backfire! If I were advising the Indian government I would tell them they shouldn't worry about loopholes in what was adopted at Bali. It gives clear enough direction to the dispute settlement organs but focus on getting a credible commitment for a timetable to deal with food security. I haven't seen the proposal they now claim to be on the table. Have you? My overall point is that the legal language, on a plain reading, doesn't in any way preclude continuing to talk, which is the sensible course, right? Thanks for the exchange and the gloss on the Geneva outlook rob Sent from my iPad
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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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