In 1993, the US Department of Commerce began to levy countervailing duties on imports of certain leaded bars from the United Kingdom. The United States applied tariffs to goods imported from British Steel Engineering Steels, a subsidiary of British Steel plc. Following investigations by the US Department of Commerce and the United States International Trade Commission, the US authorities held that the imposition of duties was both required by Section 701 of the Tariff Act of 1930 (as amended) and not in violation of any of the country’s obligations as a member of the World Trade Organization.

Measured by the standards of the relevant GATS provisions, in Article V, a very significant share of current regional trade agreements (RTAs) in services is deficient. This includes agreements involving the 50 odd WTO Members that are currently negotiating a Trade in Services Agreement (TISA). While these agreements might have improved significantly on many commitments contained in current GATS schedules, mostly submitted two decades ago, they also introduced new restrictions for which no GATS equivalents exist. Moreover, in a number of cases the parties fiddled with the definitional framework provisions and generally binding obligations and disciplines of the GATS. Should these attempts continue, TISA could not live up to its proclaimed objective of promoting future multilateral liberalization.

Nevertheless, a closer look at some RTAs previously concluded by TISA parties also suggests that, with political will, there is a possibility to avoid aberrations: a clause providing that in the event of inconsistencies with WTO/GATS provisions, the latter shall prevail. The incorporation of such a clause might be viewed as a litmus test on participants' continued commitment to multilateralism.

Two of the four issues in this Appellate Body Report concerned the proper scope of Article 21.5 DSU compliance panel proceedings; the other two issues concerned the Appellate Body's review of the Panel's use of evidence. On the Article 21.5 issues, the Appellate Body essentially ruled that an Article 21.5 compliance proceeding could evaluate the WTO consistency of: (i) the entirety of an implementation measure (including parts of the measure that did not specifically implement DSB recommendations and rulings) and (ii) new subsidy grants made under a program in respect of which prior subsidy grants had been found to cause serious prejudice so as to determine whether the new grants also resulted in serious prejudice. On the evidentiary issues, the Appellate Body upheld the Panel's conclusions, although it modified certain of the Panel's reasoning. Probably the most interesting aspect of the case was the substantial deference showed by the Appellate Body to the Panel's consideration of causation and non-attribution issues. This deference was striking compared to the lack of deference that the Appellate Body has given to national authorities on those issues. We detect, however, a welcome interest on the part of the Appellate Body to require the use of analytical tools on the part of panels evaluating serious-prejudice cases.

The United States (US) imposed, in July 1999, a safeguard on lamb meat, in the form of tariff rate import quotas, which were to be applied for a period of three years. The measure was based on findings by the US International Trade Commission that increased imports of lamb meat were a substantial cause of threat of serious injury to the US industry producing the like product. Following complaints by New Zealand and Australia that the measure was inconsistent with Articles I, II and XIX of GATT 1994, and several provisions of the Agreement on Safeguards, the World Trade Organization (WTO) Dispute Settlement Body established, in November 1999, a panel to review the consistency of the US measure with the mentioned WTO rules.

An agricultural price range system (PRS) aims to stabilize local prices in an open economy via the use of import duties that vary with international prices. The policy is inherently distortionary and welfare-reducing for a small open economy, at least according to the canonical economic model. We offer an explanation for why a government concerned with national welfare may nevertheless implement such a policy when faced with risk aversion and imperfect insurance markets. We also highlight open questions arising out of the Peru–Agricultural Products dispute for the WTO's Appellate Body to address in order to clarify how a PRS consistent with WTO rules could be designed. Finally, we discuss the possibility that a WTO member might resort to a free trade agreement (FTA) to preserve its flexibility to implement a PRS and how an FTA provision of this sort ought to be treated in WTO litigation.

I would like to add to the analyses of the authors comments on two questions: First, how should measures falling under the GATT be distinguished from those falling under the GATS? Second, could a measure inconsistent with one WTO agreement be justified by an exception contained in another?

This article examines the effectiveness of the framework for the resolution of intra-African cross-border commercial disputes, arising from the projected increase in intra-African trade in goods, services, and investments under the African Continental Free Trade Area. It examines the peculiar nature of intra-African trade and of the participating entities to provide the context to discuss the three major processes adopted in commercial dispute resolution (litigation, mediation, and arbitration) in Africa. It then argues for the promotion of arbitration as the dispute resolution process of choice for such disputes. It reimagined the framework for arbitration at the continental level and made two proposals targeted at the greater efficiency of the process: the designation of Regional Arbitration Centres across the African Union's eight recognized Regional Economic Communities, to administer such references; and the establishment of an African Commercial Court as a one-stop court for the enforcement or annulment of the final award.

Climate change poses a grave threat to the international community, thus prompting global action on all fronts. Various ‘green energy programs’ are being adopted by many governments. To the extent that governmental support is indispensable for the initiation and maintenance of these green energy programs, the SCM Agreement is directly implicated in this regard. Unfortunately, the agreement does not include any exceptions to these programs, even if the exceptions are undertaken due to the growing concerns of the global community. Under such circumstances, a practical solution should be found from within the existing framework, and be derived from an interpretation of the present SCM Agreement based on current jurisprudence. The collective jurisprudence of the WTO arguably stands for the proposition that certain renewable energy programs constitute ‘general infrastructure’ projects of a state, and thus are excluded from the financial contributions by the government under Article 1.1(a)(1)(iii) of the SCM Agreement.

Scholars and policymakers have long debated whether the Generalized System of Preferences (GSP) enhances development through increased trade – i.e., whether the program is effective as a form of ‘trade-as-aid’. We argue that, by itself, GSP increases poor-country exports, but that when recipients join the General Agreement on Tariffs and Trade (GATT) or its successor, the World Trade Organization (WTO), they realize fewer imports, and less gains in total trade, than GSP recipients that do not join the multilateral trading system. The logic is that GATT/WTO membership makes GSP more predictable by making it non-discriminatory, in the sense that exporters in recipient countries are less vulnerable to the program's ad hoc conditionality. This leads these exporters to lobby less against domestic protectionism, yielding higher trade barriers at home, and thus fewer imports. We test this hypothesis using a gravity model of trade, and data on all GSP programs, and find strong support for the argument that the GATT/WTO's interaction with GSP undermines trade.

This paper reviews the WTO Appellate Body Report on China – Measures Affecting Imports of Automobile Parts (WT/DS342/AB/R, 15 December 2008). This dispute concerns a set of regulatory measures imposing a 25% ‘charge’ on imported automobile parts used in the manufacture of motor vehicles in China. The main legal question in this case consisted of the nature of this charge as either a border charge subject to China's tariff concessions or an internal charge, subject to the basic nondiscrimination requirement of GATT Article III. In our report, we examine the reasoning of the Appellate Body relating to the difference between these two types of charges. We discuss the role and relevance of this distinction in the GATT/WTO legal system in general, and for the purposes of resolving this dispute in particular. We also address the important systemic question relating to the review of a Member's domestic laws for purposes of determining their GATT/WTO consistency. This was an important issue in this case, as China claimed that the Panel misunderstood the meaning of the relevant Decree and requested the Appellate Body to review the Panel's erroneous reading of this Decree. We discuss the Appellate Body's reasoning relating to the review of domestic laws by Panels and the Appellate Body and express concern over the distinction drawn by the Appellate Body between legal and factual elements of relevance in the interpretation of such laws.

The ‘economic bone’ in this case is less straightforward to split than the legal one. In legal terms, the Appellate Body's decision is a time-consistent one, but, in economic terms, it is not clear if it is also a welfare-optimal one. The main reason is that many questions relevant to the case were left unaddressed by the Appellate Body. Due to the lack of factual evidence to substantiate its allegations, the Panel's ruling remains rather speculative on certain accounts. For this purpose, we engage in our own examination of the facts, using mainly a unique dataset of Chinese firm-level data. We analyze issues of ownership in China's car industry, the growth of the import-competing Chinese industry over time, the elasticity of the demand for cars, and duty pass-through, etc. The purpose is to verify more closely who ‘benefits’ and who ‘loses’ from the Chinese import duty so as to understand the economic incentives involved. In this respect, we attempt to determine whether the economics support the conclusion that China pursued a beggar-thy-neighbor policy in the car-part industry.

The short answer to the question posed in the title is for the most part ‘yes’. The negotiators' objectives grew out of their governments' unsatisfactory experiences with GATT dispute settlement and they set out to fix what was wrong with the system. In the Uruguay Round result, WTO Members have established a system that is truly multilateral and at the same time works effectively and efficiently. Today the system is used by developed and developing countries alike and has shown itself capable of resolving extremely difficult and politically sensitive trade disputes. At the end of the Uruguay Round, the results of these negotiations were warmly praised in key capitals around the world, including in Washington. But there is at least one important US objective that, in practice, turned out not to have been met (at least in the way intended) in the Uruguay Round negotiations. Another important objective of many of the negotiators now appears to have backfired to an extent that several WTO Members are seeking to revisit their earlier achievement.

In the November 2003 issue of this journal, Alan Sykes describes the WTO Safeguards Agreement (SA) as ‘a mess’ (Sykes, 2003). The author sets out to show that the criteria for using safeguards protection under WTO rules, and Appellate Body (AB) decisions related to dispute settlement cases over such protection, are incoherent. Any use of protection under the SA therefore appears doomed to being struck down in a WTO challenge. The author believes that the AB could rectify this situation in the form of guidelines to make safeguards protection operational, assuming that such protection should be used in the first place.

This article examines the social challenges posed by the data-driven economy, their implications for international trade law, the current trade negotiating context involving distinct models advanced by the United States, European Union, and China, and a way forward that can both enhance trade and regulatory efficacy. It examines seven interrelated risks. They are the rise of ‘winner-take-all’ companies; social control through public and private surveillance; social polarization; premature deindustrialization; national security threats; cybersecurity risks; and threats to personal privacy. In response to these risks, the article contends that trade agreements should be deferential to national regulation, while supporting mechanisms for regulatory learning and adaptation. In this spirit, the article advances a governance framework that goes beyond ‘liberalization' and that foregrounds the importance of building resilience and engaging in regulatory problem solving.

Sanitary and phytosanitary (SPS) measures that protect human, animal, and plant health can impede trade and provoke high-profile disputes. This paper argues that the WTO's Trade Policy Review Mechanism (TPRM) could play an important role in defusing the trade-disrupting potential of SPS regulation. The most promising avenue is to review in greater detail the policy-making procedures that lead to SPS measures. How transparent and independent are countries' risk assessments of health hazards? Which provisions have countries taken to account for trade effects when selecting SPS measures? Do countries give foreign interests adequate possibility to voice their concerns over proposed SPS regulation? If reviews motivate countries to improve their policy-making processes, this will contribute to making SPS regulation less trade-restrictive and more effective in protecting health. To reach this objective, special trade policy reviews dedicated exclusively to SPS regulation might be introduced as a complement to the current reviews of countries' overall trade policies. Such a move could serve as a model for establishing further issue-specific reviews that address technical barriers to trade, trade in services, and other complex regulatory challenges.

The paper reviews the disciplines for tackling regulatory divergence in services included in 23 PTAs entered into by China, the EU, Japan, and the USA. It identifies a remarkable expansion in the number and extent of disciplines on regulatory transparency, regulatory coherence, and regulatory cooperation compared with GATS, which, subject to adequate implementation, will allow these agreements to deliver a degree of market integration well beyond what could be achieved simply by removing market access restrictions and discriminatory measures from the rule book. However, the paper calls for some restraint when estimating the potential impact of these disciplines, mainly because of the soft language used for phrasing some of them and the anticipated high implementation costs, particularly for countries with unsophisticated domestic legal systems.

The national treatment (NT) obligation embodied in Article III:4 of the GATT 1994 has been long marked by legal indeterminacy. Recently, the WTO Appellate Body has shed some fresh light on how the NT obligation should be interpreted in EC–Seal Products. The Appellate Body's report on EC–Seal Products and other recent developments in WTO case law have fundamentally reshaped our collective understanding of the NT obligation. The purpose of this article is to take stock of what we have known about the NT obligation in GATT Article III:4 after EC–Seal Products, as well as identifying some lingering uncertainties. This paper argues that the boundary of the NT obligation in GATT Article III:4 will be largely determined by how the Appellate Body deals with three big issues identified in this article in future disputes.

In July 2014, Indonesia implemented a safeguard tariff on galvalume, a type of galvanized flat-rolled steel. Chinese Taipei and Viet Nam challenged the measure, mainly claiming that Indonesia's administering authority failed to satisfy various substantive and procedural requirements of the GATT 1994 and the Safeguards Agreement. The Panel and AB found that the tariff was not a safeguard measure but rather was a simple increase in Indonesia's applied rate. Interestingly, Viet Nam, the largest import supplier, is a member of a free trade area with Indonesia, meaning Viet Nam is not subject to the MFN rate. Viet Nam's preferential tariff treatment likely influenced Indonesia's decision to claim the action was a safeguard. Ironically, even though the Appellate Body essentially rejected its claims, the ruling benefits Viet Nam.

Subsequent to the 2016 modifications concerning the strengthening of the administrative requirements on dolphin-safety outside the ETP fishery zone, the second WTO compliance proceedings have finally found the US Dolphin-Safe labelling scheme compatible with the multilateral trade system. We provide an overview of the long-running US–Mexico dispute and assess the final findings of the WTO adjudicators attempting to determine the effects of the multilateral litigation on the involved non-trade values and the real winners of the case. We find an improvement in dolphin protection, though more could be achieved through a qualification of the US measure under the principle of sustainable development also contemplated in the Preamble of the WTO Agreement, as well as an enhancement on consumer information, since declaration of dolphin-safety may now be better monitored and enforced through the new discipline for non-Eastern Tropical Pacific Ocean tuna products. However, we also observe that with no change to the appearance of the label or an informational campaign, the improved credibility of the label may hardly be passed-through to the average consumer. Furthermore, despite an increase in the stringency of the regulation for their competitors, Mexican producers do not gain greater access to the US and instead have been diversifying towards other markets. We then highlight that the Appellate Body missed an opportunity to reinforce the transparency of the system by supporting the first-ever decision to grant partially open panel meetings.

This article focuses on the interpretation and application of law in WTO dispute settlement from the angle of legal certainty and predictability. An analysis of the interpretation of WTO law shows that in general it does not differ from the interpretation of other public international law as interpretative rules well known in international law are applied. This together with the consistence provided by the respect of earlier panel and Appellate Body reports safeguard legal certainty. Furthermore, legal certainty and predictability requires clarity in the law applicable in WTO dispute settlement, in particular as regards non-WTO law. It will be shown that apart from peremptory norms of public international law (ius cogens), the relevance of international law outside WTO law is limited. Non-WTO treaty law must not be applied except if referred to by WTO law or incorporated therein. Apart from that international law of any kind can only be considered when interpreting WTO law. In certain circumstances this applies even to non-WTO treaty law to which not all WTO members are parties. Due to the as yet limited importance of non-WTO law, legal certainty and predictability also depend on the issue of conflict of norms, which also is relevant as far as the interrelationship of the different WTO agreements is concerned. In this regard predictability and legal certainty cannot be fully reached.