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WTO Jurisprudence

28 posts

A Lost Opportunity: Thoughts on the Result of China’s Appeal in Rare Earths

China lost its appeal in Rare Earths last week. The main issue on appeal: the availability of GATT XX exceptions to paragraph 11.3 of China’s Accession Protocol (AP), which contains China’s WTO-plus commitment to eliminate export duties and does not refer to GATT XX exceptions. This may

The Tests of Public Morals Under the TBT and the GATT

[This post is from my good colleague, Kyle Dickson-Smith. He is interested in some of the issues that appear to be unresolved in the Panel Report]. Now that the AB decision is out, I anticipate that he will follow up to evaluate if the AB has resolved these issues. -

Trade Constitution 2.0

Both Professor Howse and Simon raised an important issue in the China-Rare Earths panel report, whose full ramifications, I believe, would go beyond this particular dispute. To me, the panel’s ostensibly nebulous position on GATT Article XX denotes hermeneutical birth pangs for the “Trade Constitution 2.0.” What I

The Rise of the TBT Jurisprudence?

Now, we have a trio of TBT-related Appellate Body reports (Clove; Tuna II; COOL), all of which have been issued quite recently. Is this a harbinger for a more sophisticated set of jurisprudence unique to the TBT Agreement? The answer depends on what you expect from the TBT jurisprudence. If

Simon Says ....

It is apparent that Simon, “our fearless leader” is keen to rely on titles to assist in the interpretation of articles and text in treaties. While titles may be of some assistance in certain circumstances the particular use of textual analysis doesn’t seem nearly as determinative as Simon seems

The Irrationality of the WTO Export Duty Regime: Availability of GATT Article XX and Beyond

The Panel decision in China-Raw Materials reveals an utterly irrational aspect of the system: the ad hoc rules on export duties imposed on a handful of acceding members are effectively the most "sacred" rules of the WTO, in that they are permanent, not amendable, and not entitled to

Is there something wrong with this picture? (as painted by the Panel in US-AD/CVD)

I have finally finished reading the Panel report in DS379. What an amazing decision! The Panel has effectively declared the second largest economy in the world as a completely distorted one for the purpose of the SCM. The following are some key points of the decision, and their possible implications:

Zeroing and the Role of WTO Precedent

One of the interesting things about the zeroing cases (some might say more interesting than the issue of zeroing itself) is how the existence of many, many prior panel/Appellate Body reports addressing zeroing leads to discussions of the role of precedent in WTO law. This is from the U.

GATT Article XX and Non-GATT Agreements: Will We Get Some Answers in the China - Exportation Case?

There have been some brief references in the jurisprudence recently as to whether GATT Article XX provides an exception to agreements others than the GATT (see here and, to a lesser extent, here), but no substantive findings on the issue. The China - Exportation of Raw Materials case (DS394,395,

GATT Article XX as a Defense to Agreements Other Than the GATT

From today's China - Publications and Audiovisual Products report: 7.743 It is clear that the WTO Agreement includes the GATT 1994, and that the GATT 1994 includes Article XX(a). Nevertheless, China's invocation of Article XX(a) presents complex legal issues. We observe in this