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Simon Lester
Florida
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Here you go: http://www.worldtradelaw.net/dsc/database/paneltiming.asp
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Is there anything about the issue in this piece: V. Donaldson and A. Yanovich, "The Appellate Body's Working Procedures for Appellate Review", G. Sacerdoti, A. Yanovich, and J. Bohanes (eds), The WTO at Ten: A Look at the Dispute Settlement System (Cambridge, 2006) I don't have access to it right now.
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Atul, I think you are right that China could do this. I'm pretty sure this has never been done, but maybe some day it will be tried.
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Julia, I don't really have any great insights about whether the 60 day period is necessary. With the interim report coming out significantly before the final report is circulated, I can imagine less time than 60 days is needed to prepare the appeal. But I'm not sure. I'd want to ask the government folks who work on these cases what they think.
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Thanks. Or from the Model BIT: "Nothing in this Treaty shall be construed: ... 2. to preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests." http://www.state.gov/documents/organization/188371.pdf
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Anon, Do you have any examples of the bad treatment services firms are worried about in the EU?
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Lorand, So what happens in Article XX(b) cases? Would you look at alternative measures under XX(b) and then also under the chapeau? Or just under XX(b) in that situation?
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Thanks, Ted. Let me address two of the points you raise. First, would a disparate impact arising from GSP conditionality be considered "discriminatory" under the Enabling Clause? I say yes, based on the broader context of the Enabling Clause and GSP in general. To me, a crucial point here is that WTO rules prohibit discriminatory tariffs as a general matter. Lower tariffs for developing countries is an exception to this general, and very important, rule. You can only offer these lower tariffs if you meet certain conditions. What are these conditions? Well, the Enabling Clause sets them out, and makes clear the importance of development. You can offer lower tariffs if you are doing so in order to "respond positively" to "development, financial or trade needs." And that's the only reason you can do so. You can't offer lower tariffs for any other reason and have it fall within the Enabling Clause. What does this mean exactly? How do lower tariffs accomplish the goal of development and assist with developing countries' needs? By making exports from developing countries more competitive; that is, by giving them a price advantage over competing exports from developed countries. Of course, development needs are not uniform, so you can discriminate a bit. You can offer extra low tariffs for the least-developed countries, for instance. But other than that, you cannot discriminate at all under these exceptional provisions. Applying all this to IP protection, arbitration award enforcement, etc., it's possible to make an argument that such polices are loosely related to development. But you can also argue that they aren't related to development at all, and they are really just about rich country interests. But putting that debate aside, I would say that they are not related to development in the way that lower tariffs to help poor country exports relate to development. The whole point of addressing development through GSP is giving developing country exports a price advantage; it's not at all about changing developing countries in other policy areas, like IP. Second, what about product eligibility, or competitive need limits? Why are these distinctions permissible? I guess I see that as more closely tied to the fundamental basis of GSP -- lower tariffs to help developing country exports. The basic impact of GSP is as follows: Exports of developing countries are helped; competing industries in developed countries are hurt. That's the tradeoff. (Obviously, as a Cato free trader, I don't buy all this, and would reduce all tariffs to zero unilaterally. But I'm just accepting the terms of the debate as they are for the purpose of argument!) So, when making GSP decisions, governments can decide which developing countries need the lower tariffs the most, and which domestic industries can handle the additional competition.
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Kim, You address an important political point: Will anyone ever challenge the GSP conditions in U.S. law? So far, the answer has been no, and this may never change. But in terms of whether these conditions are consistent with WTO obligations, I'm skeptical.
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Julia, That's a great question! I've been having some discussions with a friend about whether an independent claim under the Enabling Clause is permitted. If it is, then yes, you get into possible defenses, including Article XX(d). I may have more to say about this soon!
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Rob, Very interesting, thanks. I do wish someone would dig through the negotiating history on this. I saw at least one document with some variations in wording that might help explain the issue. If there are any enterprising grad students reading this, I'd be happy to point them in the right direction!
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Thanks, Marc. Yes, no doubt national security will come up, although I'm not completely clear what the U.S. security interest is supposed to be. I'm curious, though, whether there would be a violation of GATS obligations in the first place, and whether Russia would press this point.
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Thanks, Melaku. I do have some hope that mutual recognition can work in the TTIP context. I'm more skeptical about reconciling competing regulatory approaches, in part because it's not clear to me that a coherent approach exists on either side.
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Joost, Thanks for the cites and explanations. I'll take a look at your book! Simon
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Hi Joel, AB decisions may not "change" the WTO treaty, but they do "clarify" it, as 3.2 states. What's the difference between "change" and "clarify"? That's a tricky one! But there are certainly arguments that the AB has "clarified" some provisions too much. You're right that 30.3 may be narrowed by the issue of whether the parties are the same ...
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I agree that with free-standing "weighing and balancing" tests, such as TBT 2.2, you may have to look at the issue differently. I don't quite know what to make of the Thai arguments in that case. I have doubts that this was anything other than protectionism, but I'd want to see good reporting on what was going on before I reach a conclusion.
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I'm not sure that's the right way to characterize the trademark right protections in the WTO/FTAs. It remains to be seen how a WTO panel will deal with this issue.
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Ted, Yes, litigation could have this impact as well. I trust that the trade lawyers out there will look for opportunities to make this argument!
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On the funding issue, see here: http://trade.ec.europa.eu/doclib/press/index.cfm?id=998
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Aaron, Hypothetically speaking, I would say that's an argument worth making. Julian, Interesting point about Kyoto. There does seem to be overlap. I wonder what governments would say about this. The other big difference is that the WTO agreement requires that resources be provided for DCs to modernize. Thanks for your thoughts on the Executive/Congressional interaction. My only further thought is this. I would guess that the administration has talked to folks in Congress informally to see if they have any objection to the trade facilitation agreement. Presumably the administration couldn't just agree to an amendment of any and all parts of WTO rules without Congress getting annoyed, even where no Congressional action is needed. But perhaps they can do it when it's considered minor and they check with Congress in advance. This isn't very satisfying in terms of "law," but maybe it works in terms of politics. GP, Thanks for your additional insights on this!
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Lorand, Excellent questions. Hopefully this will be fleshed out in future cases. I'm not sure what general standards can be set; it may just be that the weight of the international legal instruments at issue in each case is judged based on their level of international support. If we get enough cases that address this, we may then have a better sense of it.
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And by the way, the pun in the title was sort of intended -- I started out with the word "bit," then realized the "BIT" pun was there, but couldn't quickly come up with an alternative, so I just left it.
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Lars, Thanks for the comment. I'm all for cutting farm subsidies, regardless of who is providing them! Simon
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On the standard of review, what do you have in mind for deference here? Isn't this just a de novo question: Did the EU apply its criteria in an objective way? And doesn't this all relate to compliance with 2.1? If they applied the criteria in an objective way, they are in compliance with 2.1; if they did not, they are not in compliance. What kind of language would you use to describe the different possible review standards they could choose from here? On the intent point, I feel like the panel thought one of your four elements was not objective/legitimate. But I don't know which one! I would guess either (ii), (iii), or (iv).
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Hi Andrew, Two quick points before I head off to watch Thanksgiving football and eat turkey: -- On margin of appreciation/standard of review, why does that come up at all under a non-discrimination provision such as Article 2.1? Shouldn't panels simply conduct a de novo review of whether the measure discriminates based on the criteria set out in 2.1 (and elaborated in the jurisprudence), without any special deference? -- On "intent" in Article 2.1, I know the Appellate Body has bent over backwards not to use the words "intent" or "aim," but practically speaking, isn't an inquiry into "design, structure, architecture," etc., and the reference to "legitimate" regulatory distinctions, really about intent? Related to this point, perhaps the panel was saying that these measures were not, in fact, well designed or applied reasonably.
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