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BUSINESS
Gan Joo Ee
Appellate Body
Decision
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World Trade Organization (WTO)
How effective are retaliatory measures pursuant to a WTO ruling?
• To begin with, the WTO cannot ‘enforce’ a decision in the way that we
commonly associate with a court judgment. It must be remembered
that the member states of the WTO are sovereign countries.
• Trade inequalities between member states should also be factored in.
Assuming that the non-complying state is economical powerful, an
injured state that is economically weaker probably cannot retaliate
effectively even if it is allowed to do so pursuant to a WTO decision.
• For example, Country X (developed, population: 300 million) violated
the GATT. Country Y (developing, population: 20 million) imposed
higher tariffs on specific goods from Country X. Consequently, these
goods are priced higher in Country Y and became uncompetitive. But
Country Y is a developing country with a small market, where the
consumer’s purchasing power is still weak. The lack of demand for
Country X’s goods has limited impact on Country X. MONASH
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The GATT : Rationale
What is the purpose behind the GATT?
• The main purpose of the GATT is to promote trade liberalization.
• The next question: Why is trade liberalization important?
• The WTO is tasked with the goal of reducing trade inequalities
between the members and promoting global justice. To this end, the
provisions in GATT seek to ‘open’ the markets of developed countries
so that developing countries can access wealthier markets. This is
achieved through preferential market access which is usually
unilateral.
• When developed countries open “their markets to exports from smaller
economies on a preferential basis, larger economies in effect place
the consumption power of their larger, richer consumer market at the
service of the smaller economies, which can increase their exports
and thereby strengthen their economic base.” (Di Lieto & Treisman,
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2018, p. 250). BUSINESS
The GATT : Most favoured nation
Which GATT provision lays down the ‘most favoured nation’
principle?
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The GATT : Most favoured nation
How do we ascertain whether goods are ‘like products’?
• We can approach this issue from four perspectives:
(a) the physical properties of the products;
(b) the extent to which the products are capable of serving the
same or similar end-uses;
(c) the extent to which consumers perceive and treat the products
as alternative means of performing particular functions in order
to satisfy a particular want or demand; or
(d) the international classification of the products for tariff
purposes.
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The GATT : Most favoured nation
By contrast, in the following case, a broad interpretation of ‘like
products’ was adopted.
Spain – Tariff Treatment of Unroasted Coffee (1950) (‘Spain – Unroasted
Coffee Case’)
- Spain imposed a tariff of 7% for ‘unroasted/unwashed coffee’. By
contrast, the importation of ‘mild coffee’ into Spain is duty free.
- Brazil complained that Spain violated Article 1.
- The Panel concluded that coffee as an end-use product was ‘intended
for drinking’. The two types of coffee were therefore ‘like products’.
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The GATT : National treatment obligation
Article III of the GATT lays down the national treatment obligation?
Article III
National Treatment on Internal Taxation and Regulation
1. The contracting parties recognize that internal taxes and other
internal charges, and laws, regulations and requirements affecting the
internal sale, offering for sale, purchase, transportation, distribution or
use of products, and internal quantitative regulations requiring the
mixture, processing or use of products in specified amounts or
proportions, should not be applied to imported or domestic products so
as to afford protection to domestic production.
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The GATT : National treatment obligation
2. The products of the territory of any contracting party imported into the
territory of any other contracting party shall not be subject, directly or
indirectly, to internal taxes or other internal charges of any kind in
excess of those applied, directly or indirectly, to like domestic products.
Moreover, no contracting party shall otherwise apply internal taxes or
other internal charges to imported or domestic products in a manner
contrary to the principles set forth in paragraph 1.
…..
4. The products of the territory of any contracting party imported into the
territory of any other contracting party shall be accorded treatment no
less favourable than that accorded to like products of national origin in
respect of all laws, regulations and requirements affecting their internal
sale, offering for sale, purchase, transportation, distribution or use. The
provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively MONASH
on the economic operation of the means of transport and not on the BUSINESS
nationality of the product.
The GATT : National treatment obligation
5. No contracting party shall establish or maintain any internal
quantitative regulation relating to the mixture, processing or use of
products in specified amounts or proportions which requires, directly or
indirectly, that any specified amount or proportion of any product which
is the subject of the regulation must be supplied from domestic sources.
Moreover, no contracting party shall otherwise apply internal
quantitative regulations in a manner contrary to the principles set forth
in paragraph 1.
……
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The GATT : National treatment obligation
What does Article III mean?
• Article III basically says that a member state shall not impose
any tax or charges, or impose any law or place any
quantitative restriction on imported products in order to
protect similar domestic products.
• In other words, imported protects should be treated no less
favourably compared to domestic products.
• The purpose of Article III is to deter protectionist policies.
• Again, the issue of ‘like products’ may surface.
• After all, a member state has to show that another member
state has instituted measures that renders its product being
treated less favourably compared to ‘like product’ in the
domestic market.
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The GATT : National treatment obligation
Japan – Alcoholic Beverages Case II (1996)
- The EC requested consultations on 21 June 1995. Later, Canada
and the US also requested consultations.
- The complainants claimed that spirits exported to Japan were
discriminated against under the Japanese liquor tax system. This
was because Japan levied a substantially lower tax on “shochu”
than on whisky, cognac and white spirits.
- Since shochu was a domestic product, higher taxes on whisky,
cognac, etc. would violate the national treatment obligation in Article
III – provided that these alcoholic beverages are ‘like products’.
- The Panel concluded that shochu and whisky, etc. were like
products. Hence, Japan had violated Article III.
- Japan appealed. The Appellate Body upheld the Panel’s decision.
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The GATT : National treatment obligation
But how should the ‘like products’ criteria be applied?
• Admittedly, there is considerable grey area where this issue is
concerned.
• In the Japan – Alcoholic Beverages Case II (1996), the Appellate
Body expressed the view that the concept of ‘likeness’ is a relative
one that evokes the image of an accordion. The accordion of
‘likeness’ stretches and squeezes in different places as different
provisions are applied. The width of the accordion in any one of
those places must be determined by the particular provision in
which the term ‘like’ is encountered as well as by the context and
the circumstances that prevail in any given case.
• In a nutshell, there is no one-size-fit-all interpretation. What
constitute ‘like products’ depend on the context and the specific
provision of the GATT. A case-by-case basis has to be adopted
each time. MONASH
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The GATT : Limits on quantitative restrictions
What are ‘quantitative restrictions’?
• These are quotas or absolute limits to trade that a country imposes
on the production or the importation/exportation of products (or
both).
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The GATT : Exemptions
The most favoured nation principle and the national treatment
obligation are not absolute. The GATT provides for exemptions.
• Two examples will be highlighted here.
• Article XX – General Exceptions allows a member state to depart
from these principles where such adoption would (among other
things) undermine public morals, affect the health and safety of the
population or exhaust its natural resources.
• Article XXI – Security Exceptions allows a member state to depart
from these principles where such adoption would undermine the
safety, or act against the protection of society, the population and
resources of that country. For instance, a member state can impose
restrictions on the export of ‘fissionable materials’ which are used to
construct nuclear weapons.
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The GATT : Exemptions
European Communities - Measures Affecting Asbestos and Asbestos-
Containing Products (2000) (EC – Asbestos Case)
- On 28 May 1998, Canada requested consultations with the EC in
respect of measures imposed by France in 1996.
- France banned the importation of asbestos and products containing
asbestos. However, certain domestic substitutes such as PVA,
cellulose and glass (“PCG”) fibres (and products containing such
substitutes) are still available in the domestic market.
- Canada argued that (among other things) France violated the
national treatment obligation in Article III.
- The Panel considered the products concerned to be ‘like products’.
- The Appellate Body came to the contrary conclusion. A competitive
relationships between the products was an important factor in
determining likeness in the context of Article. III. Here, Canada had
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failed to show that the products were competitive in order to BUSINESS
established the likeness among the products.
The GATT : Exemptions
- In any event, the Appellate Body concurred with the Panel that
France’s measure was necessary to ‘protects human life or health’
and that ‘no reasonably available alternative measure’ existed
(GATT Art. XX(b)).
- In conclusion, the ban on asbestos and products containing
asbestos was justified as an exception under Art. XX(b).
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