Home International Tribunals Archive for category "WTO Dispute Settlement Body"

Who controls WTO dispute settlement? Reflections on the Appellate Body’s crisis from a socio-professional perspective

Published on January 13, 2020        Author: 


Last month marked a crucial moment in the history of the World Trade Organization (WTO)’s dispute settlement system. On 10 December 2019, the terms of office of Appellate Body (AB) members Ujal Bhatia and Thomas Graham came to an end, thereby leaving the World Trade Court without the minimum complement of adjudicators necessary to carry out its functions.

As is well known, this paralysis was triggered by the United States (US)’ consistent veto on the appointment of new appellate judges, justified on grounds of the court’s ‘overreach’, its undue reliance on ‘precedent’, and its alleged disregard for the rules set forth under the Dispute Settlement Understanding (DSU). In November 2019, the US doubled down by threatening to freeze the WTO’s 2020 budget absent draconian cuts to the AB’s funding. Predictably, this prompted the vehement reaction of numerous other Members, which accused the US of holding the WTO appellate system hostage of its own concerns.

Much has been written about this institutional crisis. Yet, the notion of ‘crisis’ deserves some further… critical examination. The very utterance of the word is seldom value-neutral, but rather reflects the perceptions, the preoccupations, and sometimes the agenda of the utterer. If it is indeed true that the World Trade Court is at a critical juncture, then it bears asking: critical for whom? Who are the actors involved in the struggle? How do they articulate their claims and pursue their strategies? To what ends? And who stands to gain and who to lose from the present impasse?

The WTO as a conflictive socio-professional field

Scholars tend to appraise the ongoing conflict in either of two ways. Some consider it as a normative disagreement over the appropriate boundaries of WTO adjudication vis-à-vis the regulatory authority of Members. This narrative typically focuses on the extent of the AB’s implicit powers, the role of past jurisprudence in its legal interpretations, the viability of alternatives to the appellate process, and the like. Others conceive the conflict as part of a struggle for political supremacy against the evolving landscape of international economic relations. This narrative tackles issues like US-China trade wars, the breakdown of multilateralism, the resurgence of sovereigntist economic policies, etc.

To complement these accounts, I suggest that the ongoing struggle surrounding the AB reflects a confrontation between competing socio-professional groups within the WTO legal field. The multilateral trade regime is not only a legal or a political construct. It is also the site of a contest among social actors endowed with unequal professional and technical capital, who compete for supremacy in the system. To prevail in this struggle is to secure one’s authority, impose one’s vision of the law as the dominant paradigm—in one word, to control WTO dispute settlement. Exploring the interplay and power relations among the various socio-professional actors involved in WTO adjudication is, therefore, key to understanding understanding the tensions that currently agitate the field. Read the rest of this entry…

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Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea

Published on August 22, 2019        Author: 

As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre.  Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the postwar San Francisco Peace Treaty of 1951 (SFPT).  Yet, the warning shots fired above those tiny rocks is not the only instance of regional tensions heating up in Northeast Asia.  On 2 August, Japan decided to remove South Korea from its list of trusted trade partners, following its restrictions on the exportation of three important chemicals to South Korea imposed last month.  Days later, Japan pulled back and permitted export of a key chemical for semiconductor manufacturing in Korea.  The two Asian economic titans have since brought their trade war to the attention of the WTO’s General Council

Yet the WTO is not the only international legal regime engaged in the escalating trade conflict between Japan and South Korea.  In this contribution, I aim to show that the now seldom-trodden postwar peace treaties concluding WWII are still pertinent to current international relations as evidenced by the diplomatic row between Seoul and Tokyo.  Self-help remains relevant to the effective operation of the international legal order, especially with respect to the enforcement of international legal rules lying outside the purview of any (quasi)judicial fora such as flaws from postwar peace treaties. 

The End of a World War  

While Japan ended its colonial rule of the Korean Peninsula following its surrender to the Allies at the end of WWII, the Peninsula was soon split into two entities.  Because of the Allies’ disagreement as to whether Korea was a belligerent party, neither Pyongyang nor Seoul signed the SFPT.  Despite its exclusion of both Koreas, the SFPT includes a China/ Korea entitlement clause (article 21).  Among other things, article 4—the framework provision on, inter alia, the disposition of property of Japan and of its nationals in the territories renounced by Japan (including the Korean Peninsula) and the relevant claims—is applicable to Korea by way of this special clause.  Yet the apparent omission of the reparation clause (article 14) sowed seeds of the lingering dispute over responsibility and reparations between Japan and South Korea. Read the rest of this entry…

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The WTO Panel Ruling on the National Security Exception: Has the Panel ‘Cut’ the Baby in Half?

Published on April 12, 2019        Author: 

Recently, media attention has been captured by the unravelling trade war between the declining western hegemon and the rising eastern mega-power with other discussions, such as the reform of the WTO dispute settlement system, reflecting the points of the growing divergence between the two.

Against this backdrop, the  Russia – Traffic in Transit (DS 512) dispute between Ukraine and the Russian Federation would not have attracted attention if not for one tiny detail: the Russian Federation invoked the national security exception contained in Art. XXI of the GATT. Pandora’s Box has been opened. The WTO panel found itself in a tricky situation. Amidst the severe crisis, which threatens the very existence of the WTO dispute settlement system, the panel entered murky legal terrain – adjudication of the trade measures related to national security. The national security clause had never been interpreted before – for good reason.

This post is an attempt to briefly reflect upon the panel’s ruling on the contentious issue of the national security exception. I begin by outlining the historical context of the recent transit dispute. The post then summarizes the legal claims brought by Ukraine and the justifications raised by the Russian Federation. Subsequently, the findings of the panel are discussed. The conclusion delves into the potential implications of the present decision.

In a number of the ongoing trade disputes, the parties have expressed their desire to rely upon the national security exception. The present ruling will be likely celebrated by the WTO Members that have brought legal claims against the additional steel and aluminium tariffs imposed by the United States (Section 232 tariffs). In a nutshell, if the panel’s ruling is not appealed, especially in the part pertinent to the objective review of the subparagraphs (i)-(iii) of Article XXI, then the United States national security justification in those disputes would not stand the scrutiny.

It appears, though, that the panel’s findings do not shed much light on how to resolve the unfolding trade conflict between Qatar, the United Arab Emirates and Saudi Arabia. (DS526, DS567 and DS576) The tension between these countries has a more political flavour and is not easily regarded a mere protectionism under the guise of national security. Read the rest of this entry…

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The Reviewability of the Security Exception in GATT Article XXI in Russia – Traffic in Transit: Implications for South China Sea Investment Disputes in GATT Article XXI-type Clauses in ASEAN Regional Investment Treaties

Published on April 9, 2019        Author: 

The landmark WTO Panel Report on security exceptions in GATT Article XXI came out Friday last week in Russia – Traffic in Transit.  I have written extensively about necessity and national emergency clauses in the past – particularly to reject the position of the supposed wholesale unreviewability of these clauses in the Schmittian sense (on GATT Article XXI exceptions here and here, and on GATT Article XX exceptions, here and here).  The significant valence to this decision, in my view, does not just lie with the Panel’s reasoning (especially as to what they considered to be “objectively” determinable) and its broader implications for the current configuration of the world trading system in this era of increased Trump-driven trade wars.  The greater impact of this decision’s rejection of unreviewability, I submit, will be to enable arbitral tribunals to review security defenses of States anchored on international investment treaties that have purposely grafted GATT Article XXI language.

This phenomenon may be particularly acute for the regional investment treaties of the Association of Southeast Asian Nations (ASEAN). (For the detailed analysis of these clauses, see my previous published work here.)  Attempts by any ASEAN nations (such as the Philippines, Malaysia, Viet Nam, in particular) to impose, in the present or in the future, certain regulatory measures against China-funded development projects or activities of Chinese firms who are increasingly expanding their footprint (from either dredging activities and the creation of artificial islands from dredged and pulverized coral reefs; to tourism; logistics, construction, as well as energy operations in the South China Sea) could, ordinarily, be justified under the GATT Article XXI-type clause of Article 17 (Security Exceptions) in the 2010 ASEAN-China Investment Agreement.  With the declared reviewability of GATT Article XXI in Russia – Traffic in Transit, however, ASEAN Member States should expect that these measures could be challenged (and likely reviewed by arbitral tribunals) in investor-State dispute settlement proceedings permitted under Article 14 of the same 2010 ASEAN-China Investment Agreement.  This is just one illustration of the kind of deep ripple effects that the reviewability of GATT Article XXI-type security exceptions could have across many investment treaties that have kept replicating this clause (and particularly why I have generally, in my own expert work for ASEAN, cautioned against wholesale grafting of trade norms into the regional investment treaties, without setting an explicit treaty provision either rejecting or permitting the justiciability or reviewability of these provisions).  Transposing trade law so unstintingly into investment law creates its own set of unexpected consequences.  Notwithstanding regime differences with world trade law, investor-State arbitral tribunals may find it hard to ignore the authoritativeness of the Russia – Traffic in Transit Panel Report’s finding of reviewability of GATT Article XXI security exceptions.

This post will first give a brief summary of the Panel’s reasoning on reviewability of GATT Article XXI in Russia – Traffic in Transit, anticipating some of the consequences for ongoing trade wars of the United States, the EU, and Russia that depend on the unreviewability of the security exceptions clause in GATT Article XXI. (We expect extensive commentary on this landmark decision from several quarters, and this post certainly does not intend to be the last word on the full elaboration of reasons on all issues in this case.) The remaining part of this post focuses on GATT Article XXI-type security exceptions clauses in the ASEAN regional investment treaties, and how the reviewability of these clauses could potentially impact the investment and development dimension in the South China Sea disputes.

Read the rest of this entry…

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WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 

At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

Read the rest of this entry…

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Justiciability of Security Exceptions in the US Steel (and other) Disputes: Some Middle-Ground Options and the Requirements of Article XXI lit. b (i)-(iii)

Published on November 20, 2018        Author: 

The US – Certain Measures on Steel and Aluminium Products case (US Steel Dispute) has aroused numerous comments in the blogosphere (see e.g. here, here, here, here, here and here) which already give a very good impression of the legal questions involved and of what is at stake at the WTO these days. One of the most controversial legal issues brought up by the case (and by two other recent cases: Russia – Measures Concerning Traffic in Transit (Russia – Transit) and United Arab Emirates – Measures Relating to Trade in Goods and Services, and Trade-Related Aspects of IP Rights; for comments see: here and here) is the justiciability of Article XXI GATT (security exceptions). The question of justiciability, however, has sometimes been portrayed as an either/or question by bloggers: Either justiciability or complete discretion for States. Moreover, commentators have scarcely elaborated on the further requirements of Article XXI para. b (i)-(iii) GATT with regard to the US steel dispute.

The following post shows that there are more options on the table than to allow States full discretion (option 1), or declaring security exceptions justiciable under a limited good faith standard of review (option 2), and that under all but the first option Panels are likely to declare Trump’s tariffs on steel and aluminium imports not to be covered by security exceptions. Still, finding some middle-ground position on justiciability could be useful (politically) to avoid the impression of judicial overreach.

Judicial Review: Several Options

Article XXI GATT (in the case at hand lit. b) seems to allow a Member State to self-judge what it “considers necessary for the protection of its essential security interests”. Security exceptions have scarcely been used in the GATT and earlier WTO era, and unfortunately the meaning of “considers necessary” in Article XXI GATT so far has not been authoritatively elucidated by a Panel or the Appellate Body (AB). Read the rest of this entry…

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Balancing between Trade and Public Health Concerns: The Latest Step in the Plain Packaging Saga

Published on August 8, 2018        Author:  and

The Australian Tobacco Plain Packaging (TPP) measures raised the classic issue of balancing between competing interests. While aiming at improve public health by putting plain packaging requirements on tobacco products, Australia revived an important debate in international economic law concerning whether international obligations have become too intrusive for the State’s policy space, asphyxiating the sovereign right to protect essential interests or values.

On the one hand, Australia’s measures seem to have been encouraged by public health concerns and the Framework Convention on Tobacco Control (FCTC), which is a component of a juridical strategy that purports to construct a consensus in the international legal community on the need to fight the tobacco epidemic. As the preamble to the Convention clearly states, the parties were ‘determinedto give priority to their right to protect public health’. On the other hand, the judicial contestation of the TPP measures nevertheless showed the diversity of competing interests at stake, which made the topic a perfect example of those multifaceted litigations raised before a plurality of international courts and tribunals.

The need to determine a balance between the right of the State to legislate to protect public health and the rights of tobacco companies had appeared already in the case law of the European Court of Human Rights(ECtHR Hachette Filipacchi presse automobile et Dupuy v. France,). Investment arbitration has also been another setting for this sort of litigation, most notably after Philip Morris introduced two claims contesting that the Australian and Uruguayan legislation restricting the presentation and sale of cigarettes was in violation of its rights stemming from BITs. In both cases, these requests remained unsuccessful. The ICSID tribunal used the systemic integration principle of Article 31(3)(c) VCLT to operate a balancing test between the investment protection obligations under the BIT and the State’s right to regulate, established in customary international law, together with its corollary, the police powers doctrine (Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, award, para 290).

Ever since the introduction of the complaints in 2012, the question that remained was whether the WTO adjudicatory bodies would have interpreted trade obligations in keeping with this line of reasoning. In an earlier post on the Panel report, Margherita Melillo reflected on how the Panel used the FCTC for evidentiary purposes. This blog post continues this reflection by looking at how the Panel resolved conflicting interests of public health and trade.

Balancing in international trade law

Concerns about the treatment of tobacco control measures under international trade law date back at least to the 1990 GATT case Thailand – Restrictions on importation and internal taxes on cigarettes. While tobacco control measures have also been the subject of two recent trade disputes (i.e. Dominican Republic — Import and Sale of Cigarettesand US — Clove Cigarettes), neither of these disputes drew as much attention to these concerns as Australia – Plain Packaging. At the heart of this dispute was the sharp conflict between the trade interests of the complainants and the public health concerns of Australia. International trade law normally addresses such conflicts through a system of ‘rule and exception’, set out to strike a balance between trade and non-trade interests. However, the two agreements at issue in Australia – Plain Packaging, namely the TBT Agreementand the TRIPS Agreement, do not contain a general ‘exception clause’ equivalent to GATT Article XX. The balancing of competing interests (trade and public health) in this dispute thus took place in the context of determining the consistency, or otherwise, of the TPP measures with Article 2.2 of the TBT Agreement and Article 20 of the TRIPS Agreement.

More trade restrictive than necessary?

The complainants alleged that the TPP measures were more trade restrictive than necessary to achieve their legitimate objective, contrary to Article 2.2 of the TBT Agreement. This provision allows Members to adopt technical regulations that achieve legitimate objectives, insofar as they are not more trade restrictive than necessary to fulfil those legitimate objectives. Parties to the dispute agreed that the objective of the TPP measures, as the Panel put it, was ‘to improve public health by reducing the use of, and exposure to, tobacco products’ (para 7.232). They also accepted that such objectives are legitimate within the meaning of Article 2.2 (para 7.248). Their disagreement was over the trade restrictiveness of the measures and their contribution to the public health objective they pursue. The complainants contended that the measures were more trade restrictive than necessary and proposed four alternative measures that would have been, in their view, reasonably available and less trade-restrictive while making an equivalent contribution to the realization of the legitimate objectives.

Since the objective of the measures at issue was undisputed and such objectives fall within the illustrative list of legitimate objectives under Article 2.2, the main task of the Panel was to determine whether these measures were indeed trade-restrictive but nevertheless contributed to the legitimate objectives. Taking the evidence before it in its totality, the Panel concluded that ‘the TPP measures, in combination with other tobacco-control measures maintained by Australia […], are apt to, and do in fact, contribute to Australia’s objective of reducing the use of, and exposure to, tobacco products’ (para 7.1025). The Panel also found that ‘the TPP measures are trade restrictive, ‘insofar as, by reducing the use of tobacco products, they reduce the volume of imported tobacco products on the Australian market, and thereby have a “limiting effect” on trade’ (para 7.1255).

Having found that the TPP measures are trade-restrictive but make a significant contribution to the protection of public health, the Panel had to weigh and balance the trade and public health interests at stake to determine whether they are more trade-restrictive than necessary to achieve their public health objectives. In doing so, the Panel first considered the risk of non-fulfilment of the objectives and then the reasonable availability of alternative measures that are less trade-restrictive while making an equivalent contribution to the achievement of those objectives. On the ‘risks of non-fulfilment’, it found that ‘the public health consequences of not fulfilling [the] objective are particularly grave’ (para 7.1322). It then examined the proposed alternative measures and found that the complainants failed to demonstrate their proposed alternative measures (individually or collectively) constituted a less trade-restrictive alternative to the TPP measures with an equivalent contribution to Australia’s objective (paras 7.1362-7.1723). Against this background, the panel concluded that the TPP measures are not more trade-restrictive than necessary to achieve their legitimate objective of improving public health (para 7.1732).

Unjustifiable encumbrance?

The complainants also alleged that the TPP measures constitute special regulations that unjustifiably encumber the use of trademarks in the course of trade, contrary to Article 20 of the TRIPS Agreement. The threshold issues here were whether the measures in question constitute ‘special regulation’ and ‘encumbrance’ within the meaning of Article 20. The parties to the dispute agreed that the measures indeed constituted special regulations, but they disagreed over the precise scope of the term ‘encumbrance’. While the complainants argued that it covers all kinds of hindrances and impediments, Australia insisted that it covers only limitations on the use of trademarks. Australia was of the view that a total prohibition on the use of trademarks is outside the scope of Article 20. The Panel agreed with the complainants that it would be ‘counterintuitive’ to consider that a measure that restricts the use of a trademark would be subject to the disciplines of Article 20 while a more far-reaching measure to prohibit such use would not’ (para 7.2238). This consideration has led the Panel to conclude that ‘encumbrances arising from special requirements within the meaning of Article 20 may range from limited encumbrances, […], to more extensive encumbrances, such as a prohibition on the use of a trademark in certain situations’ (para 7.2239). This finding settles the debate over the meaning of the term ‘encumbrance’ in Article 20. While scholars such as Pires de Carvalho have argued that the degree of encumbrance is not to be taken into account for the applicability of the provision, others, most notably McGrady, have argued that a prohibition falls outside the scope of application of Article 20 because the provision deals with whether the trademark could be used and not how it may might be used. The position of Pires de Carvalho seems to have prevailed over the one of McGrady in the eyes of the Panel. On this point, it is also interesting to note that a similar discussion took place concerning what constitutes a technical regulation within the meaning of the TBT Agreement. The Appellate Body in EC – Asbestos reversed the conclusion of the Panel,stating that an absolute prohibition does not qualify as a technical regulation.

Having passed the threshold issues, the Panel then had to determine whether such an encumbrance was unjustified within the meaning of Article 20. No definition or guidance as to what constitutes ‘unjustifiable encumbrance’ exist under the TRIPS Agreement. Nor there is case law on the subject. The Panel had to appreciate the justifiability in concreto, balancing the two conflicting interests.

In the absence of an agreed upon definition or jurisprudence, the Panel interpreted what constitutes ‘unjustifiably’ encumbering the use of trademarks in light of the object and purpose of the TRIPS Agreement. Here the Panel relied mainly on Article 8.1 of the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health. Having found that these two provisions authorize WTO Members to take measures for the protection of public health, the Panel concluded that the complainants have not demonstrated that the TPP measures unjustifiably encumber within the meaning of Article 20 (para 7.2605). That is to say that although the measures at issue encumber the use of trademarks within the meaning of Article 20, the encumbrance is justified by virtue of its public health objective. This conclusion resonates with the conclusion of scholars like M. Abbott who have argued  that an interpretation of Article 20 consistent with Article 8 and the Doha Declaration would have acknowledged and given effect to the ‘right to protect public health’ in any implementing action under the TRIPS Agreement and in any dispute settlement proceeding.

In arriving at this conclusion, the Panel also considered the fact that the TPP measures are ‘in line with the emerging multilateral public health policies in the area of tobacco control as reflected in the FCTC and [its] guidelines’ (para 7.2604). The Panel was of the view that the fact FCTC (a non-WTO agreement) endorses the TPP measures reinforces their justifiability. This raises the longstanding question of whether WTO adjudicatory bodies could use non-WTO agreement as an interpretative key. Although the Appellate Body has used such instruments to interpreting WTO agreement in the past, the jurisprudence is far from settled on this matter. This is why Honduras highlighted this issue in its notification of appeal.

A parallel could be made with the Brazil – Tyrescase. Here, the Appellate Body adopted a holistic approach and stressed that, because of their nature, health protection measures had to be analyzed in the larger framework of the State policy action. Looking at the measure as a whole would allow for a clearer overview of the objectives pursued by the State to be identified, in order to facilitate a more accurate balancing. Moreover, the analysis of the effectiveness of the measure had to take a chronologically larger standpoint; the effectiveness of a public policy can in fact take time to emerge (paras 151 and 182). This holistic approach, elaborated in the framework of Article XX GATT, seems to be reiterated in the framework of Articles 20 and 8 TRIPS: the unjustifiability of the encumbrance has be examined in light of all the contextual elements that lead to the adoption of the public health measure, including the reliance on the FCTC and the customary right to regulate. Here we find a strong similarity with the balancing operated in the Philip Morris case, based on an intersystemic and holistic approach.


The WTO Panel’s recent report is the last step in a long saga. This saga has allowed different international courts and tribunals to test the flexibility of international obligations with regard to the State’s regulatory space in health issues. The plain packaging report confirms a general trend in WTO case law, whereby the telosof the measure serves to justify the interference within free-trade obligations. In fact, the Appellate Body had floated an ‘unspoken sympathy for well-intentioned health and safety measures’, an unspoken sympathy that is based on the axiological importance attributed to the policies at stake. This kind of ‘smell test’, as Hudec notoriously defined it, reflects Robert Alexy’s idea of weight formula, intrinsic in the balancing operation operated in different fora. The Panel has extended this technique to two areas of WTO law where its scope of application was doubtful.  

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Trade Retaliation in the Time of Trump

Published on August 3, 2018        Author: 

A week ago the Editor-in-Chief of this Journal published a piece titled Black Lies, White Lies and Some Uncomfortable Truths in and of the International Trading System. Prof. Weiler’s argument can be summarised in two-steps: the steel tariffs imposed by the US arguing national security reasons were a gross violation of the WTO system — the black lie. The EU response establishing countermeasures did not follow the letter — or the spirit — of WTO Dispute Settlement System (Article 23). This may seem like a minor political issue, but, from a legal point of view, it undermines the system that the EU is declaring to uphold — the white lie.

Prof. Weiler — who I hold in utmost respect and appreciation as an academic and a person — does an excellent job in explaining the limitations of the WTO Dispute Settlements Understanding (DSU) to provide an adequate response to these cases. He cites the Internet Gambling saga and explains how the party violating the agreement has all the incentives to continue the violation until told by the final voice within the DSU (the Appellate Body) to cease in its conduct. In my view, this is an accurate description of a well-known problem within international trade law, since, pretty much, the creation of the WTO in 1994.

On paper, I would have nothing to add to his excellent editorial. In practice, there are a few elements that, I believe, could enrich the readers understanding of what is at stake here and how a system can organically evolve to address some of these shortcomings. Read the rest of this entry…

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Lessons from the WTO Plain Packaging reports: The use of the evidence-based WHO Framework Convention on Tobacco Control as evidence in international litigation

Published on July 16, 2018        Author: 


The WTO Plain Packaging reports have finally been published. The four reports (merged in a single document) contain the findings of the WTO panel in the disputes launched in 2012-2013 by Honduras, Dominican Republic, Cuba, and Indonesia. The disputes were directed against some tobacco control measures adopted by Australia – so-called ‘the plain packaging’ (TPP) laws. In a nutshell, TPP mandates that all tobacco products be sold in unattractive standardised packaging, thereby curtailing the use of colours, design and trademarks by tobacco manufacturers. As it was already leaked one year ago, the panel has ruled in favour of Australia.

The 884 pages of the final reports contain a lot of food for thought, and will keep many of us busy for long. This post focuses on a relatively narrow issues, namely the role of the Framework Convention on Tobacco Control (FCTC) in the case.  Despite being often overlooked in mainstream international scholarship, the FCTC is a remarkable treaty. It is the first (and so far, only) treaty ever negotiated under the auspices of the World Health Organization (WHO). Adopted by the World Health Assembly in May 2003, it has now reached the massive number of 181 ratifications. The FCTC is also a living treaty: it established a set of institutions, including a Conference of the Parties (COP) that meets biannually and has adopted 9 sets of guidelines.The FCTC was conceived in the ‘90s as an ‘international regulatory strategy’ to ‘promote national action on tobacco control’ (in the words of one of its main promoters, Allyn Taylor), in the face of the growing tobacco epidemic. To this end, the treaty (and later its guidelines) have been developed as ‘evidence-based’ instruments, i.e. as texts that require the adoption of tobacco control measures whose effectiveness has been established by evidence (see Taylor and Bettcher 2000). The set of measures is a comprehensive one, encompassing measures for the reduction of supply and measures for the reduction of demand of tobacco products. TPP measures are also part of this comprehensive set; specifically, they are recommended by the Guidelines to Article 11 and in the Guidelines to Article 13 of the FCTC.

In addition to their role in domestic implementation, the FCTC and its guidelines have proved to be useful instruments in the international disputes launched against the tobacco control measures adopted by its parties (see my earlier report as well as the more recent article by Zhou, Liberman and Ricafort). In some cases, the FCTC and its guidelines have been relied upon for their evidential value, while in others they have been considered ‘evidence’ by reason of their ‘evidence-based’ nature. The TPP reports prepared by the WTO panel are the latest cases in this series. The following sections review the approach taken by the panel on the role of the FCTC, and briefly compare it to the previous international disputes.

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China leans in on international adjudication: Why Beijing’s answer to defeat will be more forceful engagement

Published on May 2, 2018        Author: 

This year China might suffer the third in a string of stinging defeats at international tribunals that would then cover trade, investment, and law of the sea matters. Contrary to persistent expectations in some policy circles, China’s leaders will not opt for withdrawal. They have resolved to make existing mechanisms work for China, and shape global governance by doubling down on engagement. In line with different degrees of Chinese integration into these systems, Beijing will respond by ratcheting up litigation (trade), upgrading bilateral treaties (investment), and pushing for favourable state practice through diplomacy (law of the sea). The international community will have to deal with a newly powerful legal actor who is very much on the offense.

Failure and Frustration

In two ways, trade law could this year deliver the third bombshell setback in China’s recent engagement with international adjudication. Firstly, there is China’s soon to be decided WTO complaint against the EU’s retention of a distinct (although modified) antidumping methodology for (states like) China. A similar case against the United States is in the consultation stage. Beijing had expected that its Accession Protocol would deliver automatic ‘market economy status’ including more favourable antidumping treatment 15 years after it joined the WTO.

Secondly, a major trade law standoff is unfolding between China and the US, involving the mutual adoption of tariffs and filing of WTO complaints, which could come to a head this year. The US filed a complaint on China’s protection of intellectual property (IP) rights alleging TRIPS Agreement violations. At the same time, the US Trade Representative (USTR) proposed tariffs following a Section 301 US Trade Act of 1974 investigation into Chinese IP practices. Beijing already responded with a WTO complaintalleging that such tariffs would violate the GATT, and its own list of proposed tariffs. Less crucially, China initiated another case alleging GATT and Safeguards Agreement violations through US tariffs on steel and aluminium products.

Previously, giant life insurer Ping An became the first Chinese company to lose an investment arbitration, when its $1 billion claim against Belgium over the Fortisbank nationalization was rejected in 2015. A year later, China suffered an almost total defeat against the Philippinesin an Annex VII UNCLOS law of the sea arbitration on South China Sea issues in July 2016.

Such setbacks trigger angry reactions in China against allegedly biased international institutions that might never give China a fair shake. Many commentators decried China’s supposed second-class membership in the WTO, when the EU decided against granting market economy status, while recent US trade actions are termed severe violations and ‘typical of unilateralism and trade protectionism’ by the Chinese government. Chinese officials were stunned when the investor in Ping Anlost over the ‘technicality’ of whether to rely on the older or the more recent bilateral investment treaty (BIT) between China and Belgium. Following the South China Sea case, it was mooted that Beijing could ‘denounce’ the UN Convention on the Law of the Sea (UNCLOS) to be safe from other states’ attempts to ‘exploit’ the system ‘for political reasons’.

Doubling Down

Yet China is not going to withdraw, and Western governments, as guardians of the current system, will be surprised by how forcefully it will instead lean in to shape existing legal regimes. Tools will differ, but trade litigation, investment treaty making and law of the sea diplomacy to influence state practice serve the same purpose: align the rules further with China’s interests.

This effort is part of the more assertive foreign policy outlined by China’s president Xi Jinping, who just consolidated his power at the First Session of the 13th National People’s Congress. In a major shift, Xi has declared that China will no longer just participate in the international system, but provide ‘guidance’ towards a ‘new international order’. A recent treatise in the People’s Daily confirmed the ambition to seize the ‘historic opportunity’ to shape a new order while US policies under President Trump leave a leadership vacuum.

An underestimated driver of such strategic decisions is a policy elite of Chinese international lawyers who overwhelmingly favour playing offense. Prominent academics and legal counsels to the Chinese leadership have argued that with WTO dispute resolution, just showing up is half the battle. They have called for China to develop the litigious ‘mind set’ and investment treaty framework to go with its new status as major global investor. Lastly, they want China to go around the South China Sea award and influence the law of the sea by shaping state practice through diplomacy.

Bespoke Strategies

After China was refused ‘market economy status’, its Ministry of Commerce immediately struck back at the EU with a complaint at the WTO. Should it now lose the case, its appeal will already be prepared, as will be fresh complaints tackling the broader issue from different angles. At the same time, Beijing encourages Chinese companies to more proactively ‘prove’ to regulatory agencies abroad that they operate under market conditions, and contest adverse decisions at local courts.

Similarly, the Chinese government very quickly responded to recent (partly only proposed) US tariffs, with two fresh complaints. The current overall dispute with Washington will see a Chinese leadership that is more open to negotiated solutions than on antidumping methodology. Should there be any adverse decisions, though, China would again immediately appeal and file further complaints.

Flanking its litigation strategy, China continues massive diplomatic lobbying. Firstly, this serves to gain recognition as a market economy. More than 80 countries have already complied by explicitly providing such recognition, and FTA negotiations in line with theBelt and Road Initiative are to increase that number. President Xi has called for hastened implementation of China’s free trade strategy to strengthen its position in writing global trade rules, after failed Western efforts with TPP and TTIP left the field open.

Secondly, Beijing is actively portraying itself as defender of the WTO trade regime against a protectionist Trump administration onslaught. While many governments share US concerns about IP rights in China, Beijing uses (potential) US tariff implementation without WTO decisions, especially where broadly targeted such as on steel and aluminium, to position itself as the better trade citizen. China’s aim is not only to offset pressure concerning domestic legal changes, but also to shape future coalitions of states in international trade law reform (or rather in blocking reform where existing frameworks suit China).

On investment law, the investor’s defeat in Ping An spurred the Chinese government to quickly improve its investment treaties and seek influence on global investment rules harmonization. Beijing wants to get new investor-friendly treaties in place that include improved transitional clauses, and grant broad access to international arbitration, as well as, quite unusually, appellate bodies. Chinese lawyers argue that such mechanisms may improve legal predictability, but perhaps more importantly they would give the Chinese side another chance in case of defeat.

Wanting to make use of the full arsenal of available measures, the Chinese leadership also acts on the multilateral level. On the path towards a common worldwide investment law system that looks more like the WTO in the trade area, Beijing seeks to set the agenda and touts the ‘Guiding Principles for Global Investment Policymaking’, adopted at the 2016 G20 Summit in Hangzhou, as a first step. The non-binding principles are infused with Chinese wording and interpretations of principles such as legal predictability, transparency, and effective dispute resolution.

Finally, in the third issue area of the law of the sea, after the stunning loss on South China Sea claims, Beijing decided to undermine the award’s authority with a diplomatic push to underline contradictory state practice. Chinese officials aim to prevent the arbitrators’ restrictive interpretations of ‘historic rights’ and ‘island’ status from becoming international customary law. They point out, for example, that the United States and Japan use tiny rocks to make extensive maritime claims, and lobby states worldwide to support China’s interpretation of its islands’ entitlements. Some scholars point out the potential for further UNCLOS implementation agreements(as on deep seabed mining), which could clear up ambiguity in terms favourable to China and override the tribunal’s decisions.

While China may strictly reject compliance with the South China Sea award, it needs UNCLOS to protect its interests and gain influence on maritime governance. Beijing aims to secure a large UNCLOS-sanctioned continental shelf in the East China Sea, based on favourable geography vis-à-vis Japan. It wants Chinese companies to be in a prime position for the coming International Seabed Authority-sanctioned mining bonanza under the high seas worldwide, and it intends to have a seat on the table regarding Arctic governance issues. Indicative of its strategic choice to shape the system from within, China now adopts more UNCLOS-like language for its South China Sea claims and backs away from the ‘Nine-dash Line’.

The Future of China and International Law

So, in a nutshell, what should we expect China to do? Its approach has already evolved considerably. The focus shifted from the international legal order’s ‘hardware’ – joining institutions and equipping them with Chinese judges and staff – to its ‘software’. Now the Chinese leadership wants more influence on the treaties and customary law behind the system. In a parallel process, once it feels confident enough in a particular field, China gradually but inevitably boots up participation at court.

Prominent voices in China, including Prof. Yi Xianhe, member of the Foreign Ministry Consultative Committee on International Law, have argued that China must be a ‘leader country’ on international law, if it is to consolidate economic and political gains. That includes actively engaging with international tribunals. Such statements represent an emerging consensus among Chinese international lawyers that forward-leaning engagement will on balance be a positive for China, and the best protection of its national interests.

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