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Non-Violation Nullification or Impairment

18 posts

The Trump and Biden Administrations' Proposals on the WTO Security Exceptions

In a communication posted on the WTO website yesterday, entitled "Further Perspectives on WTO Reform," the U.S. calls for an authoritative interpretation of the WTO security exceptions to make clear that "[i]n any dispute in which a Member invokes the essential security exception, a WTO

Jamieson Greer on the Non-Violation Remedy

In a speech at UVA law school earlier this week, U.S. Trade Representative Jamieson Greer offered the following description of the GATT non-violation remedy: The non-violation remedy in the GATT (Article 23:1(b)) makes this point clear. It allows member countries to seek a remedy even when the

The U.S. Proposal on How to Handle Disputes on Essential Security Measures

At a DSB meeting in January 2023, the U.S. made clear its position that "it was a mistake to begin adjudicating national security at the WTO," and said: "we believe Members need to clarify and adopt a shared understanding of the essential security exception, and we

Cross-Border Subsidies and Non-Violation Complaints

Weihuan Zhou and Victor Crochet have a new working paper called "Attribution to the State: A Critique of Cross-Border Subsidies," which combines two of my favorite issues: Cross-border subsidies and non-violation complaints. Here's the abstract: While industrial policy and subsidies proliferate worldwide, the emergence of cross-border

The U.S. Non-Violation Nullification or Impairment Argument in the USMCA GE Corn Dispute

In its rebuttal submission in the Mexico - GE Corn USMCA dispute, the U.S. has set out a non-violation nullification or impairment claim as an alternative to its violation claims (the U.S. did not elucidate the non-violation claim in its initial written submission, but it did indicate in

Overcapacity and future discussions in the SCM Committee.

Finbarr Bermingham reported on Wednesday, April 23, 2024, that in the recent SCM Committee meeting, there were ‘sharp’ exchanges between the US and China related to Chinese ‘overcapacity’ in key sectors owing to subsidies. China objects to the term ‘overcapacity,’ arguing that there is no clear definition within the WTO

Security of Steel Capacity – and the Persistence of trade security exceptionalism

In its 2022 WTO Trade Policy Review for the United States (US), China asked the US about its Section 232 tariffs on steel and aluminium. Specifically, China asked about the US steel capacity utilisation rate target of 80% in the Steel Report. China asked the US whether it would now

Opt Outs, NVNI, or Automatic Rebalancing for National Security Disputes

Veteran U.S. trade lawyers Warren Maruyama and Alan Wolff have a new paper out on "Saving the WTO from the national security exception". In their conclusion, they set out three solutions to the "impasse over justiciability of national security claims": (1) allowing Members to "

Negotiating After a Loss – ADR and the US Steel Tariff Cases

How can the WTO facilitate negotiation between disputing WTO Members? DSU Article 5 offers all disputing WTO Members flexible dispute processes via good offices, conciliation, or mediation. Such proceedings may begin at any time (see fn 59), end at any time, precede formal dispute proceedings, and continue while a panel

The Curious Case of US Self-Judging, Part 2

Last Friday, the United States appealed the US-Origin Marking Requirement (DS597) and the US-Steel and Aluminium Products (DS544,552, 556, 564) reports. With the appeal came news that the US would lead an effort to draft an authoritative interpretation of GATT Article XXI. This U.S. administration will want to