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Simon Lester
Florida
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And a further question: What should international law have to say about this?
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Sungjoon, If the prudential exception ends up looking like the chapeau or the even-handedness test, that would probably reassure some of the critics.
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No, I meant that the existing German system discriminates against German drivers, because only they pay. Is that right?
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Sungjoon, This is the kind of decision that calls out for remand authority!
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Rob, Whenever I hear compulsory licensing offered as a solution to high drug prices, I wonder if that is just nibbling around the edges, and ignores a more direct action: Lowering the 20 year patent term. I've looked, and I can't find good evidence supporting a term this long. Maybe it's time to rethink it.
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Rob, I get the sense they are not planning to take on trade remedy measures used against environmental goods, which is unfortunate: http://www.cato.org/publications/free-trade-bulletin/free-trade-environmental-goods-trade-remedy-problem
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That sounds right to me for expropriation. What about for regulatory expropriation? In domestic law, there aren't usually exceptions, are there? Is it better to have the policy justifications taken into account in the obligation itself? I'm agnostic on all of this. But I would like to see how it plays out in actual cases.
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Andrew, Do you think exceptions of this sort could ever be applied to actual expropriation, e.g., government seizure of a factory?
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Thanks, Fredrik. Glad to hear we agree on the incorporation of these principles into national law. I'm surprised this idea doesn't get more traction. You'd think the business community would love it. It would be interesting to see this raised in the TTIP context. The US and EU might be the ideal countries to talk about what should be part of national standards.
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I think I'm more focused on the "least harmful means" aspect of this. How do you evaluate harm/restrictiveness? What does the inquiry look like? Is it about a decrease imports? Something more abstract?
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Lorand, I wonder if you could clarify what a pure trade restrictiveness test under a "necessity" provision such as 2.2 should look like. How should this element be evaluated? Presumably disparate impact/effect/aim, etc. are all irrelevant here. So what is relevant?
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Just wanted to chime in to support Julia here -- I see it pretty much as she sees it.
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Roderick, Other priorities is definitely a big part of it. But beyond that, my sense is there is a reluctance to open up core issues like this. People would rather have a vague compromise then a clear debate. But maybe I'm wrong about that.
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"The Panel found that, while virtually all Greenlandic seal products are likely to qualify under the IC exception for access to the EU market, the vast majority of seal products from Canada and Norway do not meet the IC requirements for access to the EU market." Isn't it all about who qualifies for the IC exception?
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Isn't the first level also the subset of potential IC seals? See para. 5.95.
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Let me note one more thing. The panel in this case seemed to take a pure detrimental impact approach (#1): "7.608. With respect to the third element under Article III:4, the national treatment obligation contained therein requires that imported products from Canada and Norway receive a treatment no less favourable than that accorded to domestic seal products. Based on the evidence before the Panel, it appears that the vast majority of seal products from Canada and Norway are excluded from the EU market by the terms of the MRM exception. In contrast, evidence shows that virtually all domestic seal products are likely to qualify for placing on the market." http://www.worldtradelaw.net/reports/wtopanels/ec-sealproducts(panel).pdf If the AB didn't like that approach, shouldn't it have said something? By not saying anything, was it endorsing this test? To be clear, I hope not, but I wonder. Or is this actually a subtle "design, structure" approach? Perhaps, but they didn't use those words or do much analysis.
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I see those paras. as somewhat formalistic. The two sets of provisions are, technically, different, for the reasons the AB says. But there is substantial overlap of the content, and the analysis under the two will track pretty closely.
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Joost, I hope you are right that there is no difference between 1 and 2. But I worry that the AB is thinking about 1, because they did not mention "design, structure, etc" under III:4. Ultimately, when faced with the reality of a future case, I think they will bring "design, structure, etc." back in. But they didn't mention it this time, so parties have the opportunity to argue that it's not in there. I agree that looking broadly at the ruling overall, you can assert that "design, structure, etc." is part of III:4. But often people look at things narrowly. On 3, I am generally skeptical of genuine relationship, but if it turns into 2, I guess it can used to some good effect. Not very coherently, though. As you say, this has become "more convoluted than necessary". I agree with you about the GATT/TBT relationship. One other point, just to be clear (in case it was not): In my view, the distribution of market shares prior to the adoption of the measure has nothing to do with "trade effects". And relatedly, the existence of differential market shares does not undermine the conclusion of a "genuine relationship."
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Joel, Three points in response: - I never touch Kool-Aid. It's bad for you, with or without cyanide. - I agree about the fetish of "competitive opportunities." - I suppose you're right that there doesn't have to be a violation here. Most likely it will be, but I can imagine circumstances under which it would not be, using a well-designed test.
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Rob, I think I see better now what you have in mind with the "genuine relationship" test. I had something narrower, and a bit empty, in mind, but you are giving it real substance. That's interesting, and might work.
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Also, just to be clear, as Ming points out, the AB has previously said "design, structure and expected operation" matters under III:4. Would they really overrule themselves, without addressing the issue explicitly?
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I've never thought much of the "genuine relationship" test. I mean, yes, you should look at whether there is such a relationship. But in most cases that come to the WTO, there will be, and thus it doesn't really tell you much about whether there is a violation. If "design, structure" is gone in III:4, it's going to be an interesting world! Not sure it will really be gone once people realize the implications.
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Ming, That's exactly where I was going with all of this. But in Seals, the AB did not mention "design, structure", etc. under III:4. Was that just an oversight, or does it have implications going forward?
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Rob, As you noted in your other post, in the context of Article I:1, the AB refers to "design, structure and expected operation." Although it did not make this same reference in its III:4 reasoning, do you think there is any scope for such an analysis under III:4 nonetheless? Is the AB really going to rely only on detrimental impact under III:4?
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Hi David, I think you meant for this comment to be on the previous post. You make a good point. Eric Posner discusses this issue a little bit here, and comes out the other way: "That’s why the European court’s focus on search results is key—the problem isn’t the continuing online existence of the information you want to hide. It’s how easy it is to find."
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