Tu sei qui:

63563 - INTERNATIONAL TRADE LAW

Anno Accademico 2020/2021

                
                        Docente:
                        Peter Plamenoff Petkoff
                    
                        Crediti formativi:
                        6
                    
                        SSD:
                        IUS/04
                    
                        Lingua di insegnamento:
                        Inglese
                    
                        Modalità didattica:
                        Convenzionale - Lezioni in presenza
                        
                            Campus:
                            Forli
                        
                            Corso:
                            Laurea Magistrale in
                            Economia e management (cod. 9203)

                                Valido anche per
                                
                                    Laurea in
                                    
                                        Economia e commercio (cod. 9202)
                                    
                                    Laurea in
                                    
                                        Economia e commercio (cod. 9202)
                                    
                            Risorse didattiche su Virtuale

Contenuti

THE WTO AND INTERNATIONAL TRADE LAW

Module Leader: Peter Petkoff

There has never been a more exciting time to study international trade law. The major global

developments in trade and investment and the legal regimes that regulate both of these areas of

activity means that this subject is of considerable theoretical but also practical significance to

public international law. This dynamic course considers the law and practice of the

international and regional trading system by evaluating (1) the substantive treaties and rights

that have been established by States as part of this system; and (2) the accompanying dispute

settlement mechanisms (both inter-State and investor-State international arbitration) that

operate in the area.

In terms of the substantive rights of international economic law these are contained in such

agreements as the World Trade Organisation (WTO) and regional trade agreements (such as,

e.g., the North American Free Trade Area (NAFTA), ASEAN, and the recently concluded USled

Trans-Pacific Partnership (TPP).)

The WTO dispute settlement system is one of the most effective and important processes of

dispute resolution that exists in international law. The course provides a detailed consideration

of the WTO dispute settlement system and compares and contrasts it with other dispute

settlement mechanisms in international economic law, most notably Investor-State arbitration

under the auspices of the International Centre for the Settlement of Investment Disputes

(ICSID).

International trade law as a system is based on a number of fundamental – primarily economic

– “systemic values”, and the course provides students with the opportunity to develop a

thorough understanding of how these systemic values interact with other global and domestic

policy goals such as environmental and labour standards protection, retaining for the State a

considerable measure of national regulatory autonomy in areas such as health and financial

regulation, and the protection of intellectual property rights.

The course will prepare students for further post-graduate research in the area of international

economic law or indeed for a career with many of the entities that practice international

economic Law (e.g. law firms, governments, international organisations or non-governmental

organisations).

ASSESSMENT TASKS

1. Final Coursework (2,000 words, released in last class and due within one week) – 100%

of total marks

LEARNING METHODOLOGY

International Trade Law applies a ‘Flipped Class’ approach to the student learning experience.

As such, this course features pre-class work and interactive workshops. Pre-class work is

independent and includes textbook readings as well as reflective questionnaires. In the

workshops, the emphasis is on inquiry-based learning, which involves active student

participation in legal problem-solving activities within small groups. These activities build on

the pre-class work, so its completion before each workshop is essential. Overall, this course

requires you to build personal capabilities in professional behaviour, self-direction, team-work,

persuasive discussion and presentation skills.

Outline of the Course:

Seminar 1: An Introduction to the International Trading System: Law and

Policy

Seminar 2: Preferential Trade Agreements and the International Trading

System

Sem 3: Legal & Institutional Aspects of the WTO Part 1

Sem 4: Legal & Institutional Aspects of the WTO Part 2

Sem 5: Most Favoured Nation & National Treatment

Sem 6: Tariffs, Quotas, & General Exceptions

Sem 7: TBT/SPS Agreements

Sem 8: TBT/SPS Agreements

Sem 9: Subsidies

Sem 10: Subsidies/WTO Dispute Settlement

Sem 11: WTO Dispute Settlement

Sem 12: Investment Treaty Arbitration

Sem 13: Trade in Services

Although the course is self-contained (i.e., no prior knowledge of economics or public

international law is required), a basic knowledge of public international law is, however,

important for anyone taking this course. Those who have never studied public international law

before are required to do some background reading. Please read M. Shaw, International Law,

(8th ed., Cambridge University Press 2017), Chapters 1-3 and 5.

It is recommended that you buy as a textbook for the course: Peter Van den Bossche and

Werner Zdouc, The Law and Policy of the World Trade Organization (4th ed., Cambridge

University Press, 2017). Matsushita, Schoenbaum, & Mavroidis, The World Trade

Organization: Law, Practice, and Policy (3rd ed., Oxford, 2016) is also good as an alternative.

Lester, Mercurio & Davies, World Trade Law: Text, Materials and Commentary (3rd ed.,

Bloomsbury 2018) is another alternative as a general textbook though the treatment is light in

some areas. It is however compulsory to purchase for the course: The WTO Agreements: The

Marrakesh Agreement Establishing the World Trade Organization and its Annexes

(Cambridge University Press, December 2017). You should access the WTO case-law either

by us ing the WTO web-page (www.wto.org) or by us ing the web- s i te

(www.worldtradelaw.net).

A great deal of material on the WTO is available on the WTO's website. You should browse

this website and in particular the pages relating to dispute-settlement. The GATT/WTO Texts

and WTO cases indicated as part of the readings are all available from the WTO website. The

WTO cases are also available at: http://www.worldtradelaw.net/

Please note common abbreviations throughout:

JIEL - Journal of International Economic Law

EJIL - European Journal of International Law

WTR- World Trade Review

AJIL - American Journal of International Law

JWT - Journal of World Trade

*denotes compulsory reading for the Seminars.

Seminar 1: An Introduction to the International Trading System: Law

and Policy

Readings:

Van den Bossche & Zdouc, The Law and Policy of the World Trade Organization (4th ed.,

Cambridge University Press, 2017), Chapter 1.

Matsushita, Schoenbaum, & Mavroidis, The World Trade Organization: Law, Practice, and

Policy (3rd ed., Oxford, 2016), Chapter 2.

Further Readings:

Sarooshi, 'Sovereignty, Economic Autonomy, the US, and the International Trading System:

Representations of a Relationship', 15(A) EJIL (20041 p.651.

Charnovitz 'What is International Economic Law', 14(1) JIEL (2011). p.3.

Lang, 'Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist

Approaches to the Study of the International Trade Regime', 9(1) JIEL (20061 p. 81.

D. Yigzaw, 'Where the real issue lies: normative conflict between the WTO system and human

rights', 18 International Trade and Business Law Review (2015), p. 18.

Petersmann, 'The WTO Constitution and Human Rights', 3 JIEL (20001 p. 19; but

Cf. Alston, 'Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply

to Petersmann', 13(4) EJIL (20021 p.815.

Heiskanen, 'The Regulatory Philosophy of International Trade Law', 38(1) JWT (2004). p.l.

Lowenfeld, International Economic Law (2nd ed., Oxford, 2008), pp.3-19.

Jackson, The World Trading System (MIT, 1997) pp. 1-30.

Lester, Mercurio & Davies, World Trade Law: Text, Materials and Commentary, Chapter 1 &

19.

Jackson 'The Changing Fundamentals of International Law and Ten Years of the WTO', 8(1)

JIEL (20051 p.3.

Seminar 2: Preferential Trade Agreements and their Relationship to the International

Trading System

Readings:

Van den Bossche & Zdouc, Chapter 10.

Matsushita, Schoenbaum, & Mavroidis, Chapter 14.

Lester, Mercurio & Davies, Chapter 8.

Further Readings:

*Weiler, 'Epilogue: Towards a Common Law of International Trade' in Weiler (ed.), The EU.

the

WTO, and the NAFTA (Oxford, 2000), pp.201-231.

P Apaza Lanyi & A Steinbach, "Promoting Coherence Between PTAs and the WTO Through

Systemic Integration", 20(1) Journal of International Economic Law (2017), p. 61.

R Basedow, 'The WTO and the Rise of Plurilateralism—What Lessons can we Learn from the

European Union's Experience with Differentiated Integration?', 21(2) Journal of International

Economic Law (2018), p. 411.

Cho, 'Breaking the Barrier between Regionalism and Multilateralism: A New Perspective on

Trade

Regionalism', 42 Harvard International Law Journal (20011 p.419.

Trachtman, 'Toward Open Recognition? - Standardization and Regional Integration under

Article

XXIV of GATT', 6(21 JIEL (20031 p.459.

Crump, 'Global Trade Policy Development in a Two-Track System', 9(2) JIEL (20061

p.487.

Zahrnt, 'How Regionalization can be a Pillar of a More Effective World Trade Organization',

39(4)

J#T (20051 p.671.

Mavroidis, 'If I Don't Do It, Somebody Else Will (Or Won't)', 40(1) JTET (20061 p. 187.

Estrella and Horlick, 'Mandatory Abolition of Anti-dumping, Countervailing Duties and

Safeguards in Customs Unions and Free-Trade Areas Constituted between World Trade

Organization Members: Revisiting a Long-standing Discussion in Light of the Appellate

Body's

Turkey-Textiles Ruling', 40(5) JWT (20061 p. 909.

Mavroidis, 'Always look at the bright side of non-delivery: WTO and Preferential Trade

Agreements, yesterday and today', 10(3) ff7K(2011).p.375.

GATT/WTO Texts:

Art XXIV GATT

Turkey - Restrictions on Imports of Textile and Clothing Products, Read Panel Findings; and

whole Appellate Body decision.

Transparency Mechanism for Regional Trade Agreements. Decision of 14 December 2006

(General Council)

The 2018 renegotiation and amendment of NAFTA:

S Lester and I Manak, "The Rise of Populist Nationalism and the Renegotiation of

NAFTA" 21(1) Journal of International Economic Law (2018), p. 151. https;//

www.vox.com/2018/10/2/17923638/usmca-trump-nafta-trade-agreement

https://ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade-agreementnafta

https://globalarbitrationreview.com/article/1175101/new-nafta-curbs-isds

Seminars 3 & 4: Legal & Institutional Aspects of the GATT/WTO System

Readings:

Van den Bossche & Zdouc, chapter 2.

Matsushita, Schoenbaum, & Mavroidis, Chapters 2-3.

Further Readings:

* Steinberg, 'Judicial Lawmaking at the WTO: Discursive, Constitutional and Political

Constraints',

98(21 AJIL (20041 p.247.

D. Geraets, 'Ensuring Continued Support for the Rules-Based Multilateral Trading System:

Need

for a Public-Private Approach', 21(2) Journal of International Economic Law (2018), p. 433.

T Li & Z Jiang, "Human Rights, Justice, and Courts in IEL: A Critical Examination of

Petersmann's

Constitutionalization Theory", 21(1) Journal of International Economic Law (2018), p. 193.

Ernst-Ulrich Petersmann, "International Economic Law without Human and Constitutional

Rights?",

21(1) Journal of International Economic Law (2018), p. 213.

Bronckers, 'More power to the WTO?' 4(\) JIEL (20011. p.41.

Jackson, 'WTO "constitution" & proposed reforms', 4(1) JIEL (2001). p. 67.

Hilf, 'Power, rules and principles - which orientation for WTO/GATT law?' 4(11 JIEL (20011

p.111.

Blackhurst and Hartridge 'Improving the Capacity of WTO Institutions to Fulfil their Mandate',

7(3)

JIEL (20041 p.705.

Rolland, 'Redesigning the Negotiation Process at the WTO', 13(11 JIEL. p.65-110.

Trachtman, 'The Missing Link: Coherence and Poverty at the WTO', 8(31 JIEL (20051 p.611.

Yigzaw, 'Where the Real Issue Lies: Normative Conflict between the WTO System and Human

Rights', 18 Int'l Trade & Bus. L. Rev. 31 (2015

Wolfe, 'Decision-Making and Transparency in the 'Medieval' WTO: Does the Sutherland

Report have

the Right Prescription?' 8(3) JIEL (20051 p.631.

Trachtman, 'The Constitutions for the WTO', 17(31 EJIL (20061 p.623.

Dunoff, 'Constitutional Conceits: The WTO's 'Constitution' and the Discipline of International

Law',

17(31 EJIL (20061 p.647.

Steger, 'The World Trading System: A New Constitution for the Trading System', in New

Directions in International Economic Law: Essays in Honour of John Jackson, edited by

Bronckers

& Quick, (2000), p. 135.

Kennedy, 'Two Single Undertakings - Can the WTO Implement the Results of a Round?', 41(11

■//EL(20111.p.77.

Liu, Accession Protocols: Legal Status in the WTO Legal System' 48 JWT (20\4) 4. p.751.

Guan, 'Consensus Yet Not Consented: A Critique of the WTO Decision-Making by Consensus'

.//EL(201411.p.77.

The changing US approach to the WTO:

https;//ustr.gov/about-us/policv-offices/press-office/press-releases/2018/iune/statementambassador-

robert-e

https;//www.rollcall.com/news/politics/trumps-threat-to-leave-the-wto-alarms-manyevenin-

congress:

https;//www.nytimes.com/2017/12/10/business/wto-united-states-trade.html;

https;//www.chathamhouse.org/expert/comment/trump-has-shown-how-dangerous-heglobal-

tradingsvstem?

gclid=EAIaIOobChMIv67AwLXT30IVvp3tCh35qAESEAMYASAAEgIudfD

BwE

Selected primary materials:

Reparation for Injuries, ICJRep. 1949. p. 174 at p. 179.

WTO Case: United States: Import prohibition of shrimp and shrimp products (Brought by

India, Malaysia, Pakistan, Thailand) (the 'Shrimp-Turtle' case), Appellate Body report WT/

DS58/AB/R. 12 October 1998.

Marrakesh Agreement establishing the World Trade Organisation, (1994) in The Legal

Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal

Texts, GATT Secretariat (1999)

Understanding on Rules and Procedures Governing the Settlement of Disputes in The

Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations:

The Legal Texts, GTT Secretariat (1999).Seminar 5: Most-Favoured Nation and

National Treatment Principles

(A) The Most-Favoured Nation

Principle

Readings:

Van den Bossche & Zdouc, chapter 4.

Matsushita, Schoenbaum, and Mavroidis, chapter 6.

Jackson, chapter 6.

Further Readings:

Goco, 'Non-Discrimination, 'Likeness', and Market Definition in World Trade

Organization Jurisprudence', 40(2) JWT(2006). p.315.

GATT/WTO Text:

*GATT Article I.

Selected WTO Reports:

Spain-Brazil Unroasted Coffee case: https://www.wto.org/english/tratop_e/dispu_e/gatt_e/

80coffee.pdf

EC - Bananas III. WT/DS27/AB/R.

Canada—Autos. WT/DS139/AB/R.

(B) National Treatment

Principle:

Readings:

Matsushita, Schoenbaum, and Mavroidis, chapter 7.

Van den Bossche & Zdouc, chapter 5.

Jackson, chapter 8.

Further Readings:

Verhoosel, National Treatment and WTO Dispute Settlement: Adjudicating the Boundaries of

Regulatory Autonomy (Hart Publishing, 2002), pp. 1-44.

Porges and Trachtman, 'Robert Hudec and Domestic Regulation: the Resurrection of Aims and

Effects', Journal of World Trade (2003). p.783.

Horn & P.C. Mavroidis, 'Still Hazy after All These Years: The Interpretation of National

Treatment in the GATT/WTO Case-law on Tax Discrimination' 15(1) European Journal of

International Law (2004). p.39.

GATT/WTO Text:

GATT Articles III. XL Ad Article III para 2.

Selected WTO Reports:

European Communities - Measures Affecting Asbestos and Asbestos -Containing Products,

Panel Report. WT/DS135/R and Appellate Body Report. WT/DS135/AB/R.

Japan Taxes on Alcoholic Beverages, WTO Report of the Panel WT/DS8/R and

Report of the Appellate Body WT/DS8/AB/R.

Canada Periodicals. Appellate Body Report. WT/DS31/AB/R.

Korea —Alcoholic Beverases. WT/DS75/AB/R.

Korea — Various Measures on Beef WT/DS161/AB/R.

Seminar 6: Tariffs, Quotas, & General Exceptions

(A) Tariffs and Quotas

Readings:

* Van den Bossche & Zdouc, chapters 6 & 7.

Matsushita, Schoenbaum, and Mavroidis, chapter 8.

Jackson, chapter 5.

The US/China "trade (tariff) war":

'Trump orders further China tariffs' https://www.bbc.co.uk/news/business-45527935

'Under Section 301 Action, USTR Releases Proposed Tariff List on Chinese Products',

https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/april/undersection-

301-

action-ustr

'Xi Jinping says no one wins in 'cold war,' but Pence won't back down',

https://edition.cnn.com/2018/ll/16/politics/xi-pence-cold-war-apec-intl/index.html

'Trump says U.S. may not impose more tariffs on China', https://www.reuters.com/article/ususa-

trade-china/trump-says-u-s-may-not-impose-more-tariffs-on-china-idUSKCNlNL28Q

'China - Certain Measures Concerning the Protection of Intellectual Property Rights - Request

for consultations by the United States',

https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?

Ouerv=(%20@,Svmbol=%20(wt/d s542/

l%20')')&Language=ENGLISH&Context=FomerScriptedSearch&languageUIChanged=true#

Further Readings:

Zedalis, 'The United States/European Communities Biotech Products Case: Opportunity for

World Trade Organization Consideration of Whether Internally Applied Non-Tax Measures

Fall Within the Scope of the General Agreement on Tariffs and Trade Article XI(l)'s Reference

to "Other Measures'", 38(4) JffT(2004). p.647.

De Cordoba, Laird and Vanzetti, 'Blend it Like Beckham-Trying to Read the Ball in the World

Trade Organization Negotiations on Industrial Tariffs', 38(5) JWT (2004). p.773.

GATT/WTO Text:

*GATT 1994: Articles I, II, III, XI. (Also: Articles X, VIII, VII, GATT Customs Valuation

Code

1979, Agreement on Rules of Origin, XII, XVIII, Understanding on Balance of Payments

Provisions,

XIII).

GATT/WTO Reports:

European Communities - Regime For The Importation, Sale And Distribution Of Bananas,

Report of the Appellate Body (WT/DS27/AB/R1

EC — Computer Equipment WT/DS62/AB/R.

Spain - Tariff Treatment of Unroasted Coffee from Brazil L/5135. adopted on 11 June 1981.

28S/102.

Canada - Administration of the Foreign Investment Review Act, (FIRA Case! GATT. 30 Supp

BIDS 140. Panel Report Adopted Feb 7 1984.

Japan - Trade in Semi Conductors. 24th Supp. BIDS 116 (1989) GATT Panel Report. Adopted

May 4 1988.

(B) General Exceptions (developing countries, health, safety, and environment)

Readings:

*Van den Bossche & Zdouc, chapter 20.

Jackson, chapter 9.

Further Readings:

Sarooshi. 'Sovereignty. Economic Autonomy, the US. and the International Trading System:

Representations of a Relationship'. 15(4) European Journal of International Law (2004).

p.651.

Hoda and Ahuja. 'Agreement on Subsidies and Countervailing Measures: Need for

Clarification and Improvement'. 39(61 JWT(2005X p. 1009

*Rubini. 'Ain't Wastin' Time No More: Subsidies for Renewable Energy. The SCM Agreement.

Policy Space, and Law Reform'. 15(2) JIEL (20121 p.525.

Henschke. 'Going it alone on climate change A new challenge to WTO subsidies disciplines:

are

subsidies in support of emissions reductions schemes permissible under the WTO'. 11(1) WTR

(20121 p.27.

Steinberg and Josling. 'When the Peace Ends: The Vulnerability of EC and US Agricultural

Subsidies to WTO Legal Challenge'. 6(21 JIEL (20031 p.369.

Ya Oin. 'WTO Regulation of Subsidies to State-Owned Enterprises (SOEs) - A Critical

Appraisal

of the China Accession Protocol'. 7(41 JIEL (20051 p. 863.

Magnus. 'World Trade Organization subsidy discipline: is this the "retrenchment round" ?'.

38(6)

J#T (20041 p.985.

Collins & Salembier, 'International Disciplines on Subsidies: The GATT, the WTO and the

Future

Agenda', 30:1 JWT(Fob. 1996), p.5.

Cross. 'King Cotton. Developing Countries and the 'Peace Clause': The WTO's US Cotton

Subsidies

Decision'. 9(1) JIEL (20061 p. 149.

Fukunaga. 'Securing Compliance Through the WTO Dispute Settlement System:

Implementation of

DSB Recommendations'. 9(21 JIEL (20061 p.383.

GATT/WTO Texts:

GATT 1994: Articles VI, XVI

Agreement on Implementation of Article VI of GATT 1994

Agreement on Subsidies and Countervailing Measures

Decisions and Declaration Related to the Agreement on the Implementation of Article VI of

GATT

1994

WTO Reports:

* Indonesia - Certain Measures Affecting the Automobile Industry, Panel Report. WT/DS55.

Australia - Subsidies Provided to Producers and Exporters of Automotive Leather case, WT/

DS126/R 25 May 1999.

US - Definitive Anti-Dumping and Countervailing Duties on Certain Products from China,

Appellate Body Report. WT/DS379/AB/R, 11 March 2011

Brazil - Export Financing Programme for Aircraft case, Panel (WT/DS46/R) and Appellate

Body (WT/DS46/AB/R) decisions.

US - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon

Steel Products Originating in the United Kingdom case (the 'Hot Rolled Lead case'), WT/DS/

13 8/R. 1999; and Hot Rolled Lead case, WT/DS/13 8/AB/R. 2000.

* US - Countervailing Measures Concerning Certain Products from the European

Communities

(Hot Rolled Lead II), 9 December 2002, (WT/DS/212/AB/R).

United States - Tax Treatment for 'Foreign Sales Corporations", WT/D S10 8/AB/R. para. 90.

Canada - Certain Measures Affecting the Automotive Industry, WT/DS/139/AB/R. para.91.

EC - Measures Affecting Trade in Large Civil Aircraft, Panel (WT/DS316/R) and Appellate

Body

(WT/DS316/AB/R)

US' - Measures Affecting Trade in Larger Civil Aircraft (2nd Complaint), Panel (WT/DS/353/

R) and

Appellate Body (WT/DS/353/AB/R)

Canada - Measures Relating to the Feed-in Tariff Program, Panel (WT/DS412-416/R) and

Appellate Body (WT/DS412-416/AB/R)

Seminars 10-11: WTO Dispute Settlement

Readings:

Van den Bossche & Zdouc, Chapter 3.

Lester, Mercurio & Davies, Chapter 5.

Matsushita, Schoenbaum, & Mavroidis, Chapter 4.

Further Readings:

Heiskanen, 'The Regulatory Philosophy of International Trade Law', 38(1) ./EFT (2004). jxL

Jackson, 'International Law Status of WTO Dispute Settlement Reports: Obligation to Comply

or Option to "Buy Out"?', 98(1) AJIL (2004). p.109.

Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005, OUP),

pp.95-100.

Steinberg, 'Judicial Lawmaking at the WTO: Discursive, Constitutional and Political

Constraints', 98(2) AflL (2004). p.247.

Sutherland Report.

Sarooshi, 'The Future of the WTO and its Dispute Settlement System', Vol 2(1) International

Organizations Law Review (2005). p. 129.

Matsushita, 'The Sutherland Report and its Discussion of Dispute Settlement Reform', 8(3)

JIEL (2005).p.623.

J Kurtz, 'The Use and Abuse of WTO Law in Investor-State Arbitration: Competition and its

Discontents', 20(3) The European Journal of International Law (2009). p.749.

Davey 'The Sutherland Report on Dispute Settlement: A Comment', 8(2) JIEL (2005). p.321.

Mavroidis, 'Amicus Curiae Briefs Before The WTO: Much Ado About Nothing'. Jean Monnet

Working Papers, 2001. Davey, 'The WTO Dispute Settlement System: The First Ten Years',

8(1) JIEL (2005). p. 17.

Flett, 'Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in

WTO Jurisprudence' (2010)13 (2)JIEL 287

Vidigal, 'Re-Assessing WTO Remedies: The Prospective and the Retrospective', \6JIEL 3

(2013)

p.505.

Other GATT/WTO Texts:

GATT 1994, Articles XXII - XXXV

Marrakesh Agreement Establishing the World Trade Organisation ("WTO Charter") Trade

Policy

Review Mechanism (WTO Charter, Annex 3)

*Understanding on Rules and Procedures Governing the Settlement of Disputes (WTO

Charter. Annex 2).

Selected WTO Reports:

United States - Import Prohibitions of Certain Shrimp and Shrimp Products, Panel Report.

WT/DS58/R. and Appellate Body Report. WT/DS58/AB/R.

European Communities - Measures Affecting Asbestos and Asbestos-Containing Products,

Panel Report. WT/DS135/R and Appellate Body Report. WT/DS135/AB/R.

European Communities -Measures Affecting Meat and Meat Products (Hormones), Panel

Report. WT/DS26 and Appellate Body Report. WT/DS26/AB/R.

European Communities - Regime For The Importation. Sale And Distribution Of Bananas.

Report of the Appellate Body: WT/DS27/AB/R. 25 September 1997

Seminar 12: Investment Treaty Arbitration

Readings:

Convention on the Settlement of Investment Disputes between States and Nationals of Other

States

R. Dolzer and C. Schreuer, Principles of International Investment Law 2nd ed. (2012)

C Schreuer et al, The ICSID Convention: A Commentary (2009)

Sarooshi, 'Investment Treaty Arbitration and the World Trade Organization: What Role for

Systemic Values in the Resolution of International Economic Disputes?', 49 Texas

International Law Journal 3 (2014V

Frank J. Garcia, Lindita Ciko, Apurv Gaurav, Kirrin Hough, Reforming the International

Investment Regime: Lessons from International Trade Law 18(4) J Int Economic Law (2015),

p.861.

Sarooshi and Volterra, 'The resolution of investment disputes by arbitration: risks facing host

States', 33 (\) Butterworths Journal of International Banking and Financial Law (2018) 12.

On investment treaty arbitration, a very helpful resource is the ITA web-site (https ://www.

italaw. com) where you can find most of the cases by using the "Search" function in the menu

bar.

Please also consult of course the ICSID web-site which contains a number of the cases: https://

icsid.worldbank.org/en/Pages/icsiddocs/ICSID-Convention.aspx as well as the Oxford

University Press "Investment Claims" website which can be accessed through Oxlip.

Selected jurisdiction issues of investment treaty arbitrations (the cases listed below can be

obtained from the ITA and ICSID websites cited above):

Jurisdiction ratione personae: rights of shareholders: Siemens AG v. Argentine Republic,

ICSID Case No. ARB/02/8, Decision on Jurisdiction, 3 August 2004; Enron Corporation

and Ponderosa Assets v. Argentine Republic, ICSID Case No. ARB/01/3, Decision on

Jurisdiction, 14 January 2004; and Noble Energy v. Ecuador, ICSID Case No. ARB/05/12,

Decision on Jurisdiction, 5 March 2008,

Jurisdiction rationae materiae:

The inherent concept of an investment in Article 25 ICSID: the "Salini test": Salini v.

Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001. The

application of the Salini test by non-ICSID arbitral tribunals: Invesmart v. Czech

Republic, Award, 26 June 2009, UNCITRAL; and White Industries Australia

Limited v. The Republic of India, Final Award, dated 30 November 2011,

UNCITRAL; and cf Romak SA (Switzerland) v. The Republic of Uzbekistan, Award,

26 November 2009 (PCA Case No. AA280); and Alps Finance and Trade AG v. The

Slovak Republic, Award, 5 March 2011 (UNCITRAL).

Minority shareholding as an investment: CMS Gas Transmission Co v Argentine

Republic, ICSID Case No ARB/01/8, Decision on Annulment, 25 September 2007; and

Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16,

Decision on Annulment, 29 June 2010; and Roslnvest Co UK Ltd v Russian

Federation, SCC Case No V(079/2005), Final Award, 12 September 2010.

* Jurisdiction rationae temporis: the issue of time-bars, e.g. Articles 1116(2)-1117(2) of the

NAFTA: Teemed v. Mexico, ICSID Case No. ARB(AF)/00/2, Award, 29 May 2003, 10

ICSID

Reports 130; United Parcel Service of America v. Government of Canada

(UNCITRAL) Award on the Merits, 24 May 2007 and cf. Grand River Enterprises Six

Nations, Ltd, et al. v. United States of America, UNCITRAL, Award, 12 January 2011.

Seminar 13: The General Agreement on Trade in Services

Readings:

* Matsushita, Schoenbaum, and Mavroidis, chapter

16. Lowenfeld, pp. 117-142.

Further Readings:

Altinger and Enders. "The Scope and Depth of GATS Commitments'. 19:3 The World Economy

(19961 p.307.

Hartridge, Kaul and Odarda, eds., Handbook of GATS Commitments - Trade in Services Under

the

WTO (2003).

Sarooshi, 'Commonwealth Developing Countries and the WTO Telecommunications Regime'

Multilateral and Regional Trade Issues for Developing Countries (Turner and Grynberg, eds.)

(2003), p.9.

Bronckers and Larouche, 'Telecommunications Services and the World Trade Organisation',

31:3

J#T(1997),p.5.

Mattoo, 'National Treatment in the GATS: Corner-Stone or Pandora's Box?', 31:1 JWT (1997),

p.107.

Sauve, 'Assessing the General Agreement on Trade in Services', 29:4 JWT (1995), p. 125.

Wang, 'MFN Treatment Under the General Agreement on Trade in Services and its Application

Financial Services', 30:1 JWT'(1996), p.91.

Lang. 'The GATS and Regulatory Autonomy: A Case Study of Social Regulation of the Water

Industry'. 7(4) JIEL (20051 p.801.

Muselli and Zarrilli. 'Oil and Gas Services: Market Liberalization and the Ongoing GATS

Negotiations'. 8(21 JIEL (20051 p.551.

Luff. 'Telecommunications and Audio-visual Services: Considerations for a Convergence

Policy at

the World Trade Organization Level'. 38(6) JWT(20041 p.1059.

Adlung and Roy. 'Turning Hills into Mountains? Current Commitments Under the General

Agreement on Trade in Services and Prospects for Change'. 39(6) JWT(20051 p. 1161.

Fox. 'The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and

Competition'. 9(2) JIEL (20061 p.271.

Adlung. 'Public Services and the GATS'. 9(2) JIEL (2006). p.455.

Lapid. 'Outsourcing and Offshoring Under the General Agreement on Trade in Services'. 40(2)

JWT

(20061 p.341.

Delimatsis. 'Due Process and 'Good' Regulation Embedded in the GATS - Disciplining

Regulatory

Behaviour in Services Through Article VI of the GATS' 10(1) JIEL (2007). p. 13.

WTO, Guide to reading the GATS Schedules of Specific Commitments and the Lists of Article

(MFN) Exemptions.

G, Gari, Is the WTO's Approach to International Standards on Services

Outdated?

19(3) J Int Economic Law (2016), p.589.

WTO Texts:

WTO Agreement Annex IB: General Agreement on Trade in Services & Decisions Relating to

the

GATS

WTO Council for Trade in Services, Fourth Protocol to the GATS, S/L/20, 1996

WTO Council for Trade in Services, Decision on Commitments in Basic Telecommunications,

S/L/19, 1996

* WTO Group on Basic Telecommunications, Reference Paper on Regulatory Principles, 24

April

1996, available on WTO website.

WTO reports:

Mexico - Measures Affecting Telecommunications Services - Panel Report. WT/DS204/R (facts

and findings of Panel only), 2004.

United States - Measures Affecting the Cross-border Supply of Gambling and Betting Services

-Panel Report. WT/DS285/R (facts and findings of Panel only), 2004, Appellate Body Report.

WT/DS285/AB/R.

Canada—Autos, WT/DS139/AB/R.

EC — Bananas III, WT/DS27/AB/R.

Canada Periodicals case, Appellate Body Report. WT/DS31/AB/R.

Seminar Questions

Seminar 1 Brief Outline: An Introduction to the International Trading System

1. The debate surrounding international trade and its role in political and economic

globalisation.

2. The objective of international trade law.

3. The main types of regulatory measures that impede trade and their effects.

4. The core principles of international trade law: Free Trade and the MFN and NT

principles.

5. The role and importance of trade liberalisation and its relation to the present WTO

Agreements.

6. What the WTO wants to be when it grows up: the concept of a Free Trade Area.

7. Ways of conceiving a Free Trade Area (FTA): top-down (imposed by States) and

bottom-up (achieved by traders).

8. Why do States enter into FTA agreements?

9. The “theology” of international trade law: the principle of Free Trade and its role in the

promotion of efficient production and the creation of maximum global wealth.

10. What Free Trade is not about: the distribution of productive resources or wealth.

11. The relationship between the principles of Comparative Advantage and Free Trade.

12. What are the challenges to Comparative Advantage (CA) and Free Trade as the

underpinnings of the international trading system?

• CA is based on a perfectly competitive economy which doesn’t exist in practice.

• The role of the government in changing conditions of CA within a State and the

difficulties posed by the WTO disciplines on subsidies.

• The adverse effect domestically of CA – e.g. wages and employment levels

within a State; and the “race to the bottom” in terms of environment and labour

standards that may be compromised by a government in order to ensure a low

cost of production.

• The “imposition” of cultural homogeneity.

• Infant industry objections.

13.Your conclusionSeminar 2 Brief Outline: Preferential Trade Agreements (PTAs) and

their Relationship to the International Trading System

1. PTAs and the International Trading System: Regional Customs Unions and Free Trade

Agreements.

2. Why do we need an Article 24 derogation in the GATT for PTAs?

3. What are the conflicting policy and legal objectives that Article 24 of the GATT seeks to

balance?

4. What are the economic and political objections to PTAs?

5. To what extent have these objections been met by Article 24?

6. Why are PTAs allowed within the multilateral trading system as embodied in the WTO

Agreements?

7. The renegotiation and amendment of NAFTA

8. What are the component elements of RCUs and FTAs as permitted by the WTO?

9. To what extent and in what circumstances can an RCU be formed in a way that is

incompatible with a State’s existing GATT obligations? The WTO Turkey-India case.

Seminars 3 & 4 Brief Outline: Legal & Institutional Aspects of the WTO

1. What was the envisaged relationship between the International Trade Organization (ITO)

and the GATT? Why did the ITO not emerge as an organization? How did the GATT

have force as a treaty despite it not formally entering into force?

2. How did the GATT evolve into a functioning quasi-organization despite the absence of

the ITO? Consequences for the relationship between the GATT Secretariat and Member

States.

3. The evolution of GATT dispute settlement and Article 23 (2) of the GATT.

4. The increased liberalization of trade and the GATT Secretariat. The 8 Negotiating Rounds

and the issue of Non-Tariff Barriers.

5. “GATT â-lá-cartè”: What legal problems do the GATT Side-Codes raise?

6. The Uruguay Round Agreements “single package” approach. The relationship between

GATT 1947, GATT 1994, and the WTO: the shift from a power-based system to a rulesbased

system.

7. How does the WTO as an Organization function vis-à-vis the WTO Agreements? To what

extent does the trade compliance function affect the trade liberalization function of the

WTO?

8. When can an International Organization be said to possess International Legal

Personality?

9. What powers and duties flow from the possession of such Personality? The ICJ UN

Reparations case.

10. To what extent does the WTO possess International Legal Personality? What

consequences does this have for relations between the WTO and its Member States?

11. To what extent can the WTO Agreements be characterised as a “constitution” for world

trade?

12. What are the arguments made by those in favour of the constitutional character of the

WTO Agreements and to what extent do they possess cogency?

13. What values – and therefore constituencies – does the WTO promote to the detriment of

others?

14. To what extent should the WTO be a forum for the balancing of trade and non-trade

values?

15. The changing US approach to the WTO

Seminar 5 Brief Outline: Basic Principles & Core Concepts of the WTO I: MFN &

NT Principles

(A) Most Favoured Nation Treatment Principle

16. What are the advantages and disadvantages from a systemic perspective of an MFN

obligation being multilateral rather than bilateral in nature?

17. The different approach to MFN afforded by adopting the perspective of the individual State:

(1) the possibility of an “efficient” MFN violation; (2) the role of the legislative and judicial

arms of domestic government.

18. What is the content and scope of coverage of the WTO MFN obligation?

• The concept of “like product”.

(i) Importance of the concept for determining the application of the value of equality

which underlies MFN.

(ii) Why would a State wish to discriminate against “like products”?

(iii) The problem of establishing rules on the basis of which products may be

differentiated. What factors should be taken into account? Detailed consideration of the

principles in the Canada-Autos WTO case and Spain-Brazil Coffee GATT case.

(iv) The Harmonized Code System – the International Convention on Harmonized

Commodity Description and Coding System.

• The meaning of “advantage” in Article I of GATT 1994. Detailed consideration of the EC

– Bananas III case (Panel and Appellate Body).

• The object and purpose of Article I (1). Canada – Autos case (Appellate Body, para.84).

• To what extent does the MFN obligation extend to de jure as well as de facto

discrimination? Detailed consideration of the principles in the Canada-Autos case.

• To what extent do GATT exceptions to MFN render the obligation illusory? What

systemic problems are posed by the specific and general exemptions under the GATT?

(B) National Treatment Principle

19. What are the objects and purposes of the NT principle contained in Article III (1), III(2), and

III(4) of GATT 1994?

20. The NT principle and the issue of the application of the value of equality: What are the

different approaches to determining the “likeness” of products in Articles III(2) and (4) of

GATT 1994?

• To what extent does “likeness” depend solely on the products themselves? The

physical properties approach: detailed consideration of the principles in the Japan

Alcoholic Beverages case.

• To what extent should there be a role for the market in determining “likeness”? The

directly competitive or substitutable products test: detailed consideration of the principles

in the Japan Alcoholic Beverages case and Korea Alcoholic Beverages case.

• To what extent should consumer habits and tastes be taken into account when

determining “likeness”? Detailed consideration of the principles in the EC-Canada

Asbestos case.

21. To what extent should Article III apply beyond the product itself to include the method or

process of its production?

Seminars 6-7 Brief Outline: Tariffs, Quotas, and General Exceptions

1. Tariffs under the WTO

• the concept of a tariff as a tax and its distributive effects for an economy and for

traders

• binding and non-binding tariffs

• the WTO framework – Article 2 and MFN

2. The US-China Trade (Tariffs) War

3. Quotas under the WTO

• the distributive effects of a quota for traders

• the negative consequences of a quota for traders

• the WTO framework – Articles 11 & 13

4. General Exceptions under Article XX of the GATT

• The chapeau of Article XX and the three standards that must not be violated:

- what is arbitrary discrimination

- what is unjustifiable discrimination

- what is a disguised restriction on international trade

- assessment of these standards as expounded and clarified in the Shrimp Turtle case

(Appellate Body)

• The exception to protect health: Article XX (b)

- Article XX (b) and the ‘necessity test’.

- what discretion is left to the domestic regulator? The role of values?

- assessment of the treatment of Article XX (b) in the Korea-Beef and Asbestos cases

• The exception to protect the environment: Article XX (g)

- what is an ‘exhaustible natural resource’?

- when can a ‘measure’ be said to ‘relate to’ the conservation of an exhaustible natural

resource?

- how should a national measure that discriminates against trade treat domestic

production or consumption?

- assessment of the treatment of Article XX (g) in the Shrimp Turtle and US –

Gasoline cases.

Seminar 8-9 Subsidies

1. The concept of a subsidy

2. The Subsidies and Countervailing Measures (SCM) Agreement and the tension between (i)

constraints on governments in order to protect and promote free trade and (ii) national

regulatory autonomy of governments.

3. The approach to economic policy encapsulated in the SCM Agreement: the value of

‘corporate economic autonomy’.

4. The SCM Definition of a Subsidy: e.g. Brazil – Export Financing Programme for Aircraft

case, Appellate Body, para.157.

• What constitutes a ‘government or any public body’? US – AD/CVDs (China). • What is a

financial contribution?

(i) A direct transfer of funds: e.g. Australia – Subsidies Provided to Producers and

Exporters of Automotive Leather case.

(ii) (ii) Government revenue that is otherwise foregone: e.g. US – Foreign Sales

Corporation case and Canadian Certain Measures Affecting the Automotive

Industry case.

(iii)(iii) Government-directed provision of goods or services: US - Measures Treating

Export Restraints as Subsidies case.

• When is there a ‘benefit’? Canada - Measures Affecting the Export of Civilian Aircraft case

and US – Hot Rolled Lead cases.

5. The Categories of Subsidy

• The concept of Specificity

• The category of Prohibited Subsidies: export subsidies and local content subsidies:

e.g. Australia - Subsidies Provided to Producers and Exporters of Automotive Leather

case and US – Foreign Sales Corporation case.

Seminars 10-11 Brief Outline: WTO Dispute Settlement

1. Why is the WTO dispute settlement system (DSS) a quasi-judicial and not judicial system

of dispute settlement?

2. To what extent does the DSS make law? The relationship between the Dispute Settlement

Body and the WTO political organs.

3. The Dispute Settlement Body and the adoption of Panel and Appellate Body reports: the

reverse consensus rule.

4. The move from the power-based system of the GATT to the rules-based system of the

WTO.

5. Why did the most powerful economic power, the United States, push for the

establishment of a binding DSS during the Uruguay Round?

6. The development of ICSID Dispute Settlement

7. WTO Dispute Settlement compared to ICSID Dispute Settlement

8. The process of establishment of a Panel and the importance of the Consultation Phase.

9. The initial stages of the Panel phase of a case.

• Mandate of the Panel

• Selection of Panellists

• The requirement of “measures” to be addressed by a Panel and changes to or the

termination of such measures before the Panel hearings

10. How has the DSS treated the submission of amicus curiae briefs? In your view, to what

extent, if at all, should amicus curiae briefs be allowed in the DSS?

11. The Appellate Body phase of a case: selected issues:

• Remand authority?

• Recommendations and Rulings

12. Developing country participation in the DSS: current practice and prospects.

13. Selected possible areas of DSS reforms:

• Remedies

• Panels and Appellate Body: permanent panellists and AB term extension

• Amicus curiae briefs

• Compliance

• Compensation

• Retaliation

14. Why has the US changed its approach to WTO Dispute Settlement?

Seminar 12 Brief Outline: Investment Treaty Arbitration

15. WTO Dispute Settlement compared to Investment Treaty Arbitration:

The role of systemic values?

National regulations relating to the environment and dispute settlement

The applicable law used to resolve disputes

The issue of remedies

The issue of amicus curiae submissions

16. Selected jurisdictional issues of investment treaty arbitrations:

• Jurisdiction ratione personae: rights of shareholders: Siemens AG v.

Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction, 3

August 2004; Enron Corporation and Ponderosa Assets v. Argentine Republic,

ICSID Case No. ARB/01/3, Decision on Jurisdiction, 14 January 2004; and Noble

Energy v. Ecuador, ICSID Case No. ARB/05/12, Decision on Jurisdiction, 5

March 2008,

• Jurisdiction rationae materiae:

- The inherent concept of an investment in Article 25 ICSID: the “Salini test”:

Salini v. Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July

2001.

- The application of the Salini test by non-ICSID arbitral tribunals: Invesmart v.

Czech Republic, Award, 26 June 2009, UNCITRAL; and White Industries

Australia Limited v. The Republic of India, Final Award, dated 30 November

2011, UNCITRAL; and cf. Romak SA (Switzerland) v. The Republic of

Uzbekistan, Award, 26 November 2009 (PCA Case No. AA280); and Alps

Finance and Trade AG v. The Slovak Republic, Award, 5 March 2011

(UNCITRAL).

- Minority shareholding as an investment: CMS Gas Transmission Co v

Argentine Republic, ICSID Case No ARB/01/8, Decision on Annulment, 25

September 2007; and Sempra Energy International v Argentine Republic,

ICSID Case No ARB/02/16, Decision on Annulment, 29 June 2010; and

RosInvest Co UK Ltd v Russian Federation, SCC Case No V(079/2005),

Final Award, 12 September 2010.

• Jurisdiction rationae temporis: the issue of time-bars, e.g. Articles

1116(2)-1117(2) of the NAFTA: Tecmed v. Mexico, ICSID Case No. ARB(AF)/

00/2, Award, 29 May 2003, 10 ICSID Reports 130; United Parcel Service of

America v. Government of Canada (UNCITRAL) Award on the Merits, 24 May

2007 and cf. Grand River Enterprises Six Nations, Ltd, et al. v. United States of

America, UNCITRAL, Award, 12 January 2011.

Orario di ricevimento

Consulta il sito web di Peter Plamenoff Petkoff