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WTO (Exceptions (General exception (Art. XX GATT (Art. XIV GATS) (Broad…

- - - - Broad approach to interpret the provision on exceptions. US- Shrimp and US-Gasoline
        
        TWO-TIER TEST
        
        Does the measure fulfill the requirements in a subparagraph?
        
        The subparagraph contains requirements concerning the measure itself.
        
        Exempel (b) PP.3 s. 10
        
        The measure is designed with an objective to protect life or health of humans, animals or plants
        
        The measure is necessary to achieve its objective
        
        3 more items...
        
        Exempel (d) PP.3 s. 12
        
        The measure must be designed to secure compliance with laws or regulations, which are not GATT-inconsistent
        
        2 more items...
        
        The measure must be necessary to secure compliance
        #
        
        1 more item...
        
        Exempel (g) PP.3 s. 13
        
        The measure relates to the conservation of exhaustible natural resources
        (AB, US-Shrimp, preamble)
        
        The measure must relate to the conservation of exhaustible natural resources
        (US-Shrimp, real relationship)
        
        The measure must be made effective in conjunction with restrictions on domestic production or consumption
        
        Does the measure fulfill the requirements in the “chapeau”?
        
        The “chapeau” contains requirements concerning the application of the measure.
        
        US-Gasoline, US-Shrimp (PP.3 s.16)
        
        Arbitrary or unjustifiable discrimination between countries where the same conditions prevail (PP.3 s.17)
        
        A disguised restriction on international trade
        (PP. 3 s.18)
  - - - Article XIX of the GATT 1994 and Article 2.1 of the Agreement on Safeguards (PP. 3 s.46 ff.)
        
        There must be “increased imports”, as a result of “unforeseen developments” (Argentina-Footwear, US-Steel Safeguards, Korea-Dairy)
        
        There must be “serious injury” or a “threat of serious injury” to the domestic industry in the importing Member (US-Lamb)
        
        There must be a “causal link” between the increased imports and the injury (US-Wheat Gluten, US-Lamb)
        
        < PROCEDURAL REQUIREMENTS
        
        prior consultations with affected Members
        
        < Only to the extent necessary
        
        less than the average imports in the last 3 representative years, “clear justification”
        
        < NON-DISCRIMINATION
        
        Exceptions
        
        Developing countries 3%
        
        Selective application of a quota
      - Provisional safeguard measures
  - - - Enabling clause
        
        Exception to Art. I:1 for developed countries to developing countries
- - - - art 31-32 VCLT
        
        Good faith
        
        ordinary meaning of the words
        
        context
        
        object and purpose of the agreement involved
  - - - amicus curiae (friends of the court briefs)
- - - - Article XXVIII bis of the GATT 1994 calls for tariff negotiations
        
        Each Member has a schedule annexed to Marrakesh Protocol to the GATT 1994
        
        Article II:1(a) of the GATT 1994: Treatment no less favorable than that provided in the schedule
        
        Article II:1(b) of the GATT 1994
        No other duties or charges can be imposed in excess of the duties and charges recorded
      - MODIFICATION OR WITHDRAWAL OF TARIFF CONCESSIONS
        
        Article XXVIII:1 (PP. 2 s. 43)
      - IMPOSITION OF DUTIES
        
        three determinations (PP.2 s.45)
        
        The determination of proper classification of the imported goods
        
        The determination of the custom value of the imported goods
        
        The determination of the origin of the imported good
  - - - Article XI of the GATT
        
        cornerstone Turkey – Textiles
    - - bl.a. ART XX GATT
        
        När tillåtet --> ART. XIII GATT (PP. 2 s. 57)
        
        The rules on the distribution of trade
        
        The rules on import licensing procedures
        
        The rule of non-discrimination
- - - - s. 16 boken
        
        4 question test
        
        Is the measure at issue of the kind covered by article 1:1?
        
        Broad range of measures (appellate body, panels)(PP.2 s. 7)
        
        Does the measure at issue confer a traded "advantage"?
        
        The term "Any". Broad meaning.
        
        Colombia-Ports of Entry (PP.2 s. 8)
        
        Are relevant products "like products"?
        
        Physical characteristics , costumers preferens, end use, tariff classification, PPM?
        
        Japan-Alcoholic (s.18 boken, PP 2 s.11), EC-Asbestos (PP. 2 s.10, s.39 boken), US — Poultry (China) (PP.2 s.12)
        
        Is the advantage at issue granted "immidiately an unconditionallly" to all like products concerned?
        
        Canada-Autos (PP.2 s.15)
  - - - s. 24 boken
        
        ART III:1
        
        Art. III:2 second sentence + AD ARTICLE III:2
        
        4 question test
        
        Are the imported and domestic products "directly competitive or substitutable?
        
        broader category , capable of being substituted, cross-price-elasticity, and markets in other Members
        
        1 more item...
        
        Are these products not similarly taxed?
        
        must be more than a very small difference
        
        1 more item...
        
        Is the measure at issue an "internal tax" that Is directly or indirectly applied on the relevant product?
        
        same as under the first sentence
        
        Is the dissimilar taxation applied so as to afford protection to domestic production?
        
        design, architecture and revealing structure of the measure; look at the magnitude of the tax differential
        
        1 more item...
        
        Art. III:4
        
        3 question test
        
        Is the measure at issue a law, regulation or requirement covered by article III:4?
        
        Very broad scope
        
        1 more item...
        
        Are the imported and domestic products "like products"?
        
        Broader scope than the first sentence of Article III:2, but not broader than the combined scope of the first and the second sentence (Asbestos PP.2 s.30)
        
        1 more item...
        
        Are the imported products accorded less favorable treatment?
        
        “effective equality of opportunities”; no need to look at actual trade effects
        
        1 more item...
        
        Art. III:2 first sentence
        
        3 question test
        
        Are the imported and domestic products "like products"?
        
        narrowly
        
        1 more item...
        
        Are the imported products taxed "in excess" of the domestic products?
        
        even the smallest amount is too much; not necessary to show trade effect
        
        1 more item...
        
        Is the measure at issue an "internal tax" that is directly or indirectly applied on the products in question?
        
        general principle, which informs the rest of Article III
        
        Annex I Ad ART. III, Japan-Alcoholic Beverages II, Korea- Alcoholic (PP.2 s.18)
- - - - Increase standards of living
      - Attainment of full employment
      - Growth of real income and effective demand
      - Expansion of production of, and trade in, goods and services
      - Take into account the preservation of the environment and the needs of developing countries
    - - develop an integrated, more viable and durable multilateral trading system
      - preserve the basic principles and to further the objectives underlying this multilateral trading system
    - - Reduction of tariff barriers and other barriers of trade.
      - The elimination of discriminatory treatment in international trade relations.
- - - - WTO agreement & annexes
      - WTO case law
        
        Only binding on the parties to the dispute
        
        In practice important clarifications
        
        Article 3.2 of the DSU (PP.1 s. 25)
      - Acts of WTO bodies
      - Agreements concluded in the context of the WTO
      - Customary international law and general principles (se även s. 8 ff. US-Gasoline)
    - - MINISTERIAL CONFERENCE (Art IV:1 of the WTO Agreement)
        
        PP. 1 s.13
      - GENERAL COUNCIL, DISPUTE SETTLEMENT BODY AND TRADE POLICY REVIEW BODY
        
        PP. 1 s.14
      - WTO SECRETARIAT
        
        PP.1 s.15
      - Decisionmaking
        
        Normally consensus or majority
        
        Special procedures
        
        PP. 1 s.21