What Lorand said!

So far, the best we've got is the DSU, and with all its gaps and islands, I'd say it is working quite well. And indeed it's the inability of the membership to respond to any needs for systemic changes or clarifications, great or small, which is the problem, but it is a reality. Member driven, indeed. Asleep at the wheel might be a better description. T.

That is a key question. Put differently, one could ask whether there is an obligation (in the GATT, and by virtue of the DSU, also in other covered agreements, save TRIPS, for now) not to nullify or impair benefits accruing. If there were such an obligation, it wouldn't sit well with the "whether or not it conflicts" language of XXIII:1(b) - which would then mean something like, if there is N/I, you are in violation of an obligation even if you weren't in violation under another provision. I think this would be inconsistent with the logic of the Uruguayan Recourse case and art. 3.8 DSU (which establishes the reverse presumption - a violation is presumed to be N/I), as well as with the NV jurisprudence, and specifically with art. 26(1)(b) DSU, that clearly distinguishes between N/I and a violation, as well as 26(1)(d) DSU whereby compensation can be a final settlement of the issue, not a temporary measure. In other words, there are reasons to see that measures causing nullification and impairment without violation are "permissible" , both in the sense that they are not a violation, and in the sense that they can continue to be maintained subject to an obligation under an agreement or arbitration ordering compensation. The same might be true regarding a measure that impedes the attainment of the objectives without violation. A different conclusion would further imply that in a "situation complaint", the existence of N/I as the result of the existence of "any other situation" entirely beyond the control of a member would also be considered impermissible, and I doubt that is the case.

Just a general observation on the "harmonious interpretation argument, I'm not sure why an outcome whereby an exception from one agreement is applied to obligations from another agreement is more harmonious than an outcome whereby it does not. Arguably, harmony requires that the agreements not interfere with each others' operation, not that they share a (lowest or highest) common normative denominator. That is, by the way, very different from arguing that similar exceptions in different agreements should be treated as mutual context, either learning from each other, or shedding light on the differences between them. T.

Hi Simon, Two messy cases from the '80s provide some guidance in this respect. In the US-Nicaragua Embargo case (which was not adopted), the Panel determined that it was not within its mandate to examine the justification of the embargo under the security exception (Art. XXI), and so could not determine whether there was a violation or not. It then proceeded to essentially determine that there had been nullification or impairment that required some remedy. The implication is that the exception did not trump non-violation. The second case is the US-Sugar Waiver case, in which the panel considered the non-violation part of the EC complaint, after finding that the violation was justified by a waiver from the '50s. The NV complaint was rejected because of lack of detailed justification, but the EC was not precluded from bringing a non-violation complaint with addition evidence. Again, the implication is that the exception (the waiver), while releasing the US from its obligations, did not permit it to cause nullification or impairment without a violation. I happened to discuss this with some students at UBC yesterday. While the first intuition is to object to the non-applicability of the exceptions, because it seems to empty them of significance, there is much to be said for the rationale of the panels just mentioned. Despite the "nothing in this agreement" language, the understanding is that the exceptions permit a measure that would otherwise be prohibited. By definition, a non-violation complaint refers to a measure that is permissible, either because it requires no exceptional justification, or because it is justified by an exception. To say that one cannot complain against a measure to which an exception applies, is tantamount to saying that one cannot complain against an a priori permissible measure; and this would empty the non-violation complaint of meaning in all cases. The safety valve in such cases is, of course, the very high bar that non-violation complaints have to face. And besides, non-violation complaints are now established under the DSU, as you point out. The question would then be another component in the overall Article XX vs. non-GATT obligations issue... Best, T.

Sorry, that should be http://www.thespoof.com/news/spoof.cfm?headline=s3i65204 .

Here's another take on the bananas outcome. Looks like they have better sources than most news outlets: http://www.thespoof.com/news/spoof.cfm?headline=s3i65204.

Brett, as you know this is a topic that was discussed a lot in the past in the CRTA but lost steam. I understand that in the run up to the MC Lamy made an attempt to revive member interest by pointing out all the work and attention the topic is receiving outside the WTO (not just academics but IADB and others). The rules chair was requested to prepare a summary of the issues discussed in the past, but I haven't seen it. Some members referred to this in their statements and in working sessions, and this is the basis for the inclusion of this paragraph, which could easily have been left out. I don't know, though of any new proposals having been made.

Hi Julia: http://www.telegraph.co.uk/news/worldnews/asia/china/1942254/China-looks-abroad-to-grow-its-own-food.html T.

I certainly agree that the attendance of lobbies is light. There is simply little need to influence when the MC is defined as a non-negotiation one, and the US doesn't have much to say either in terms of making concessions or making new demands. Likewise with civil society. You should come down to the WMO to the ICTSD symposium, which is host to generally more interesting NGO activity. As for uncivil society, it's quite pathetic - I think the compound was locked down today for about 15 minutes because the 20 or so demonstrators decided to cross the street. But the turnout of Ministers is full, which is a good thing. I have the unsubstantiated feeling, though, that if any serious sideline talks are going on, they are not about the WTO, but about other trade agreements!

If you are interested in this proposition, check out Andrew Mertha, The Politics of Piracy (http://www.amazon.com/Politics-Piracy-Intellectual-Property-Contemporary/dp/0801443644), which also shows how enforcement of IP in China has been enhanced where domestic stakeholders required it, not as a result of foreign pressure. I wouldn't go so far as to say that this evidence precludes the role of international law and enforcement entirely, though. Far from it. They set a standard, and can be used by domestic groups to argue for increased protection.

Surely a leading hypothesis, certainly dominant in some cases, but not the only one. Other hypotheses would include political welfare (it is worth politician's time to defend hopeless cases, because the political payoff is large), cognitive biases (hopeless cases are not perceived as hopeless), the unpredictable nature of much of WTO law (cases are not hopeless ex ante), poor showings by complainants during consultations (permitting respondents hubris), etc.. T.

Simon, and Anon99, before reaching those depths, and this is what I referred to in my previous comment, since these are tariffs, if they go beyond NAFTA commitments but do not go beyond MFN, then Mexico would be within the bounds of its WTO Arts. I and II commitments (and I do not know that this is the case). Soft Drinks was a national treatment violation.

Actually, I believe that the NAFTA approach works to Mexico's advantage. Mexico would (hypothetically) only have to justify not retaliating in the trucking services sector. Subsequently, in contrast to the DSU that would prefer a different services sector, Mexico would be free to retaliate in any 'sector' - goods or services. Another point (and all this is speculative, having not seen Mexico's measure), the mandate for a remedies panel under 2019 only addresses the "level of benefits suspended" - as opposed to 22.7 DSU which permits review of whether the principles and procedures of 22.3 have been followed (even though the "nature" of benefits suspended is not to be reviewed). And the standard of review under NAFTA would be whether the level of suspension is "manifestly excessive", whereas in the DSU it is the murkier, but more restrictive "equivalence" test. If the retaliatory measures do not go beyond MFN, how would this be a WTO violation (in contrast to the Soft Drinks scenario)? T.

I haven't presumed to look into the WTO conformity of the SLA, but since I am writing on this in a broader context, perhaps I should. Pragmatically, there is of course the initial question of who would complain if it isn't WTO-consistent. Moreover, my immediate point above was that because none of the softwood complaints were safeguards cases, the SLA could not be considered a measure sought, taken or maintained under Article XIX GATT, and so under Article 11.1(c) Safeguards, the Safeguards Agreement, including the prohibition of VERs in Article 11 would not apply. Article 8 ADA would not seem to apply either because it relates to undertakings from exporters, whereas the SLA is a treaty between states. And in practice PUs (despite their title) do sometimes include tariff-quota mechanisms vis-a-vis exporters, not unlike the SLA, and I am not sure that Article 8 is clear about that possibility. Article 18 SCM is more appropriate with respect to the CVD disputes, and Article 18.1(a) SCM permits undertakings from a subsidizing government that include "other measures concerning [the subsidy's] effects" - so broad enough to include the SLA mechanism.

The SLA may or may not be WTO consistent, but I don't think the Safeguards Agreement would apply by virtue of Article 11.1(c) of that agreement.

No, I'm not saying that out of context. Brazil, however, does say this outright, emphasizing the use of a double negative, but I am saying something a bit diffferent. Fn. 9 doesn't say "This expression is not meant to allow countermeasures that are disproportionate." (period), but adds "in light of the fact that the subsidies dealt with under these provisions are prohibited". I don't think it is implausible to note that other grounds for disproportionate countermeasures have not been precluded (but they still need to be "appropriate"). Clearly this argument is unattractive to Brazil, who is trying to make as much as it can out of the prohibited nature of the subsidy. By the way, the Arbitrator in US-FSC (para. 2.56) noted that "footnote 9 clarifies that Article 4.10 is not intended to allow countermeasures that would be 'disproportionate'. It does not require strict proportionality", hence allowing for greater latitude than a positive formulation. So there are indeed several ways in which "not disproportionate" might be considered different than "proportionate"!

Commendable, but not the first: the peer-reviewed Law and Development Review is already online on Bepress http://www.bepress.com/ldr/ .

I think there is a difference between assessing the purpose of countermeasures, writ large; the purpose of countermeasures for either prohibited or actionable subsidies; and, most specifically, the purpose of footnote 9 to Article 4.10 SCM. A third way of looking at footnote 9 (beyond the "compliance" vs. "rebalancing" debate), and I think research into the negotiating history might be helpful here, is that it is intended to preclude countermeasures that are punitively disproportionate, taking into acount the prohibitiveness of the subsidy. If that is the case, footnote 9 does not tell us what the purpose of countermeasures is; rather it tells us what the purpose is not. It also does not say, positively, that countermeasures "shall be proportionate", but only that countermeasures shall not be disproportionate merely because the subsidies are prohibited. This would be entirely consistent with the ILC Draft Articles and with the general approach of remedies in the WTO. This interpretation then leaves open the question of appropriateness of countermeasures for inducing compliance rather than rebalancing. On that question, Brazil makes some good arguments (and there are others) for the understanding that the goal of Article 4 as a whole and countermeasures in particular, is inducing compliance. However, getting back to Simon's general question, even if the goal of countermeasures were strictly compliance, this does not mean that countermeasures are not meaningfully limited. They still need to be "appropriate", and I don't think this expression justifies a divergence from the general principle of proportionality as per Article 51 of the ILC Draft Articles. So, as arbitrators have determined, there is some flexibility and a margin of appreciation, but countermeasures cannot be excessive.

Yes, it is a quote, but it is emphasized and significantly advanced as context for what follows. In any case, nothing in the USTR report is a self-standing 'commitment'. Again, these are just smoke signals, nothing concrete, but as such are more positive than negative, in my view.

A very good exploration of the differences between NT in trade and investment is DiMascio and Pauwelyn' article in AJIL from early last year. Where I would take issue with the argument you quoted is "vis-a-vis its competitors" at the end of the second quoted passage. It isn't clear whether national treatment in investment protection requires that the discrimination apply between competitors (tribunals have differed on this; it requires a certain reading of like circumstances). And in any case it doesn't seem to be a necessary component of their overall argument.