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ELIMINATING TRADE REMEDIES FROM THE WTO: LESSONS FROM REGIONAL TRADE AGREEMENTS

Published online by Cambridge University Press:  03 August 2010

Tania Voon
Tania Voon
Affiliation:
PhD (Cambridge); LLM (Harvard); Grad Dip Intl L, LLB (Hons), BSc (Melbourne); AMusA; Associate Professor, Melbourne Law School, University of Melbourne; Former Legal Officer, Appellate Body Secretariat, World Trade Organization; Fellow, Tim Fischer Centre for Global Trade & Finance, Bond University; Barrister and Solicitor, Supreme Court of Victoria and High Court of Australia. Email [email protected].
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Abstract

As the global financial crisis threatens to manifest in enhanced protectionism, the economic irrationality of dumping, countervailing, and global safeguard measures (so-called ‘trade remedies’) should be of increased concern to the Members of the World Trade Organization (‘WTO’). Long tolerated under the WTO agreements and perhaps a necessary evil to facilitate multilateral trade liberalization, elimination of trade remedies is far from the agenda of WTO negotiators. However, a small number of regional trade agreements offer a model for reducing the use of trade remedies among WTO Members in the longer term, consistent with WTO rules and broader public international law.

Type
Article
Information
International & Comparative Law Quarterly , Volume 59 , Issue 3 , July 2010 , pp. 625 - 667
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 In this article, the term ‘RTA’ encompasses both ‘free-trade areas’ and ‘customs unions’ as defined in art XXIV:8 of the WTO's General Agreement on Tariffs and Trade 1994, as discussed further in part IV.B.1 below. I use this term for convenience, recognizing that many ‘RTAs’ are not in fact between geographically proximate territories.

2 This term is taken from R Baldwin and P Low (eds), Multilateralizing Regionalism (CUP, Cambridge, 2009).

3 See eg, WTO Press Release 556, ‘WTO Secretariat reports increase in new anti-dumping investigations’ (7 May 2009); International Centre for Trade and Sustainable Development, ‘WTO Warns of “Significant Slippage” toward Protectionism’ (2009) 13 Bridges Weekly Trade News Digest 4; WTO, World Trade Report 2009 (WTO, Geneva, 2009) 19.

4 R Teh, T Prusa and M Budetta, ‘Trade Remedy Provisions in Regional Trade Agreements’ in A Estevadeordal, K Suominen and R Teh (eds), Regional Rules in the Global Trading System (Cambridge University Press, New York, 2009) 166, 245. But see R McGee and Y Yoon, ‘Anti-Dumping Rules Should be Consigned to the History Books’ Financial Times (London England 3 July 2009).

5 LT/UR/A-1A/1/GATT/1 (signed 15 April 1994, entered into force 1 January 1995).

6 LT/UR/A-1A/3 (signed 15 April 1994, entered into force 1 January 1995).

7 LT/UR/A-1A/9 (signed 15 April 1994, entered into force 1 January 1995).

8 LT/UR/A-1A/8 (signed 15 April 1994, entered into force 1 January 1995).

9 1155 UNTS 331 (adopted 22 May 1969).

10 Marrakesh Agreement Establishing the World Trade Organization, LT/UR/A/2 (signed 15 April 1994, entered into force 1 January 1995) (‘Marrakesh Agreement’) preamble.

11 T Carpenter, ‘A Historical Perspective on Regionalism’ in Baldwin and Low (n 2) 13, 14 (citing M Finger, Antidumping: How It Works and Who Gets Hurt (University of Michigan Press, Ann Arbor, 1993). See also M Finger and J Nogués, ‘Introduction and Overview’ in M Finger and J Nogués (eds), Safeguards and Antidumping in Latin American Trade Liberalization: Fighting Fire with Fire (Palgrave Macmillan and World Bank, Washington DC, 2006) 1, 39.

12 Carpenter (n 11) 14.

13 See eg, WTO Consultative Board, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (Geneva: WTO, 2004) ch II. See also J Bhagwati and A Panagariya, ‘Preferential Trading Areas and Multilateralism—Strangers, Friends, or Foes?’ in J Bhagwati and Arvind Panagariya (eds), The Economics of Preferential Trade Agreements (The AEI Press, Washington DC, 1996) 1.

14 GATT 1994, art XXIV:5.

15 Particularly in GATT 1994, art XXIV:8.

16 For discussion of the economic impact of RTAs, see Viet Do and William Watson, ‘Economic Analysis of Regional Trade Agreements’ in L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (OUP, New York, 2006) 7–22. See also D Gantz, Regional Trade Agreements: Law, Policy and Practice (Carolina Academic Press, Durham, North Carolina, 2009) 17–25.

17 See parts IV.A and IV.B.

18 See GATT 1994, arts II:2(b), VI:2, VI:3, XIX:1(a).

19 On the relationship between safeguards and the MFN rule, see part IV.B.3.

20 GATT 1994, art XI:1.

21 See M Trebilcock and R Howse, The Regulation of International Trade (3rd edn, Routledge, New York, 2005) 312–313 (citing K Dam, The GATT: Law and International Economic Organization (University of Chicago Press, Chicago, 1970) 99, 106); WTO, World Trade Report 2009 (WTO: Geneva, 2009) 26–30, 39. See also Finger and Nogués (n 11) 26; references to Sykes, below nn 27, 32.

22 R Baldwin, S Evenett and P Low, ‘Beyond Tariffs: Multilateralizing Non-Tariff RTA Commitments’ in Baldwin and Low (n 2) 79, 137.

23 See eg, M Finger, F Ng, and S Wangchuk, Antidumping as Safeguard Policy, World Bank Policy Research Working Paper 2730 (World Bank, Washington DC, 2001). See also Finger and Nogués (n 11) 40.

24 See eg, P Lloyd, ‘Anti-Dumping and Competition Law’ in P Macrory, A Appleton and Michael Plummer (eds), The World Trade Organization: Legal, Economic and Political Analysis (Springer, New York, 2005) vol II, 67–82; Senator J Ludwig, A Fair Go for Australian Industry: Labor's Policy Discussion Paper on Australia's Anti-Dumping Administration (2006); M Taylor, International Competition Law: A New Dimension for the WTO? (Cambridge University Press, Cambridge, 2006) ch 9; cf Cho, S, ‘Anticompetitive Trade Remedies: How Antidumping Measures Obstruct Market Competition’ (2009) 87 North Carolina Law Review 357Google Scholar.

25 See below nn 26, 30 and 41.

26 GATT 1994, arts VI:1, VI:2; Anti-Dumping Agreement, arts 1, 2.1, 3.1, 3.5. Anti-dumping measures apply only to trade in goods. The WTO's General Agreement on Trade in Services LT/UR/A-1B/S/1 (signed 15 April 1994, entered into force 1 January 1995) (‘GATS’) does not mention dumping or anti-dumping measures.

27 See P Mavroidis, P Messerlin and J Wauters, The Law and Economics of Contingent Protection in the WTO (Edward Elgar, Cheltenham, 2008) 7–18; A Sykes, ‘Comparative Advantage and the Normative Economics of International Trade Policy’ (1998) 1 Journal of International Economic Law 49, 80–81; A Sykes, ‘International Trade: Trade Remedies’ in A Guzman and A Sykes (eds), Research Handbook in International Economic Law (Edward Elgar, Cheltenham, 2007) 62, 97–101; Trebilcock and Howse (n 21) 250–261; E Vermulst, The WTO Anti-Dumping Agreement: A Commentary (Oxford University Press, Oxford, 2005) fn 7; WTO, World Trade Report 2009 (WTO, Geneva, 2009) xv–xvii, 65–73, 83–84; cf J Viner, Dumping: A Problem in International Trade (University of Chicago Press, Chicago, 1923, reprinted 1991 by Augustus M Kelley, Publishers) 120–122, 147; G Marceau, Anti-Dumping and Anti-Trust Issues in Free-trade Areas (Oxford University Press, Oxford, 1994) 43.

28 See (n 24) and corresponding text.

29 WTO General Council, Decision Adopted by the General Council on 1 August 2004, WT/L/579 (2 August 2004) [1(g)]. See also A Mitchell, ‘Broadening the Vision of Trade Liberalisation: International Competition Law and the WTO’ (2001) 24 World Competition: Law and Economics Review 343.

30 GATT 1994, art VI:3; SCM Agreement, arts 10, 15.1, 15.5. Countervailing measures apply only to trade in goods. Article XV of the GATS provides for further negotiations on subsidies in the services context but does not mention countervailing measures.

31 See G Horlick and D Steger, ‘Subsidies and Countervailing Duties’ in P Morici (ed), Making Free Trade Work: The Canada–US Agreement (Council on Foreign Relations Press, New York, 1990) 84, 86.

32 See A Sykes, ‘International Trade: Trade Remedies’ in Guzman and Sykes (n 27) 62, 106–109; A Sykes, ‘Subsidies and Countervailing Measures’ in Macrory, Appleton and Plummer (n 24) vol II, 83, 84, 103–105.

33 Trebilcock and Howse (n 21) 283.

34 Mavroidis, Messerlin and Wauters (n 27) 462; cf WTO, World Trade Report 2009 (WTO, Geneva, 2009) xvii–xviii, 88–95, 101–102.

35 GATT, art VI:1.

36 SCM Agreement, art 1.1(a)(1).

37 SCM Agreement, art 30.

38 A Sykes, ‘Subsidies and Countervailing Measures’ in Macrory, Appleton and Plummer (n 24) vol II, 83, 104–105.

39 In particular, an injurious subsidy could fall under art 5(a) of the SCM Agreement in a WTO dispute settlement proceeding, and satisfy the requirements of art 10 of the SCM Agreement in a countervailing duty investigation. An injurious subsidy could also be prohibited under art 3 of the SCM Agreement or contrary to arts 5(b) (nullification or impairment) or 5(c) (serious prejudice) of the SCM Agreement, all of which violations could be addressed in WTO dispute settlement.

40 Fn 35 to the SCM Agreement allows a Member to pursue both avenues at the same time (countervailing duty investigation under Part V and dispute settlement pursuant to Parts II or III), but only one remedy may be obtained (countervailing measures, or countermeasures following a successful WTO dispute).

41 GATT 1994, art XIX:1(a); Safeguards Agreement, arts 1, 2.1, 4.2. Safeguards apply only to trade in goods. Art X of the GATS provides for further negotiations on ‘the question of emergency safeguard measures’ in the context of services.

42 For example, specific safeguards arise under: GATT art XII (to address balance of payments difficulties); art 5 of the WTO's Agreement on Agriculture LT/UR/A-1A/2 (signed 15 April 1994, entered into force 1 January 1995); and Section 16 of the Protocol on the Accession of the People's Republic of China, annexed to WTO Ministerial Conference, Decision of 10 November 2001 on Accession of the People's Republic of China, WT/L/432 (23 November 2001) 9–10.

43 See part III.A.2.

44 See eg, Bagwell, K and Staiger, R, ‘Enforcement, Private Political Pressure and the GATT/WTO Escape Clause’ (2005) 34 Journal of Legal Studies 471CrossRefGoogle Scholar; A Sykes, ‘Protectionism as a Safeguard: A Positive Analysis of the GATT Escape Clause with Normative Speculations’ (1991) 58 University of Chicago Law Review 255.

45 Messerlin, P and Fridh, H, ‘The Agreement on Safeguards Proposals for Change in the Light of the EC Steel Safeguards’ (2006) 4 Journal of World Trade 713Google Scholar, 715–716; Sykes, A, ‘The Persistent Puzzles of Safeguards: Lessons from the Steel Dispute’ (2004) 7 Journal of International Economic Law 523, 524–525Google Scholar; cf C Bown and M Crowley, ‘Safeguards’ in Macrory, Appleton and Plummer (n 24) vol II, 43, 53–54.

46 Safeguards Agreement, arts 7.1, 7.2, 2.2 (but see exceptions in arts 5.2 and 9); Panel Report, Argentina—Footwear (EC), [8.84]. See the discussion in part IV.B.3 below concerning art 2.2 of the Safeguards Agreement.

47 Safeguards Agreement, arts 8, 12.3.

48 Bown, C, ‘Why are Safeguards Under the WTO So Unpopular?’ (2002) 1 World Trade Review 47CrossRefGoogle Scholar, 50–51. See also WTO, World Trade Report 2009 (WTO, Geneva, 2009) xv, 47–49.

49 Bown (n 48) 47–48; Mavroidis, Messerlin and Wauters (n 27) 465; Bown and Crowley (n 45) 57, 61; WTO, World Trade Report 2009 (WTO, Geneva, 2009) xx.

50 Mavroidis, Messerlin and Wauters (n 27) 475.

51 A Sykes, ‘International Trade: Trade Remedies’ in Guzman and Sykes (n 27) 62, 75. See also Trebilcock and Howse (n 21) 313–314.

52 See part IV.B.3.

53 Safeguards Agreement, art 8.3.

54 Understanding on Rules and Procedures Governing the Settlement of Disputes, LT/UR/A-2/DS/U/1 (signed 15 April 1994, entered into force 1 January 1995) (‘DSU’), art 21.3(c).

55 Safeguards Agreement, art 7.1.

56 See eg, Appellate Body Report, US—Steel Safeguards; ‘Sparks Fly Over Steel’ The Economist, (London England 15 November 2003) 78; Office of the Press Secretary, White House, ‘Statement by the President’ (Press Release, 4 December 2003).

57 O Prost and E Berthelot, ‘Agreement on Safeguards, art 2’ in R Wolfrum, P-T Stoll and M Koebele (eds), Max Planck Commentaries on World Trade Law Volume 4: WTO—Trade Remedies (Martinus Nijhoff, Leiden, 2008) 264, 286; see also Sykes (n 45) 524, 563; Sykes, A, ‘The Fundamental Deficiencies of the Agreement on Safeguards: A Reply to Professor Lee’ (2006) 40 Journal of World Trade 979Google Scholar, 979–980.

58 Appellate Body Report, Argentina—Footwear (EC), [111]–[112]; Appellate Body Report, US—Line Pipe, [181]; Appellate Body Report, US—Steel Safeguards, [448]–[453]; Appellate Body Report, US—Wheat Gluten [96].

59 Pauwelyn, J, ‘The Puzzle of WTO Safeguards and Regional Trade Agreements’ (2004) 7 Journal of International Economic Law 109, 119–124CrossRefGoogle Scholar.

60 Lee, Y-S, ‘Not Without a Clue: Commentary on “the Persistent Puzzles of Safeguards”’ (2006) 40 Journal of World Trade 385Google Scholar, 390; cf Sykes (n 57) 979, 993–994.

61 Sykes (n 57) 979, 984–985.

62 See part IV.B.3.

63 See (n 3) and corresponding text.

64 See WTO, World Trade Report 2009 (Geneva, WTO, 2009) xxi, xxiii.

65 WTO Press Release 556, ‘WTO Secretariat reports increase in new anti-dumping investigations’ (7 May 2009); AD Initiations: By Reporting Member From: 01/01/95 To: 31/12/08, at <www.wto.org/english/tratop_e/adp_e/ad_init_rep_member_e.pdf>, accessed 21 June 2010; AD Measures: By Reporting Member From: 01/01/95 To: 31/12/08, at <www.wto.org/english/tratop_e/adp_e/ad_meas_rep_member_e.pdf>, accessed 21 June 2010.

66 CV Initiations: By Reporting Member From: 01/01/95 To: 30/06/09, at <www.wto.org/english/tratop_e/scm_e/cvd_init_rep_member_e.pdf>, accessed 21 June 2010; CV Measures: By Reporting Member From: 01/01/95 To: 30/06/09, at <www.wto.org/english/tratop_e/scm_e/cvd_meas_rep_member_e.pdf>, accessed 21 June 2010.

67 WTO–OECD–UNCTAD, Report on G20 Trade and Investment Measures: September 2009 to February 2010 (8 March 2010) 23–24.

68 C Bown, ‘The Pattern of Antidumping and Other Types of Contingent Protection’ PREMnotes Number 144 (October 2009) 1; C Bown, ‘Antidumping, safeguards, and protectionism during the crisis: Two new insights from 4th quarter 2009’ vox (18 February 2010). These statistics include China-specific safeguards (see (n 42) and corresponding text). See also Chad Bown, ‘Protectionism is on the Rise: Antidumping Investigations’ in R Baldwin and S Evenett (eds), The Collapse of Global Trade, Murky Protectionism, and the Crisis: Recommendations for the G20 (Centre for Economic Policy Research, London, 2009) 55; Global Antidumping Database version 6.0, <http://people.brandeis.edu/~cbown/global_ad/monitoring/>, accessed 21 June 2010.

69 Baldwin and Evenett (n 68). See also WTO, World Trade Report 2009 (WTO, Geneva, 2009) 160.

70 For earlier WTO analysis of RTA trade remedy provisions, see WTO Committee on Regional Trade Agreements, Inventory of Non-Tariff Provisions in Regional Trade Agreements: Background Note by the Secretariat, WT/REG/W/26 (5 May 1998) 15–22.

71 At the time of writing, Azerbaijan, Belarus, Kazakhstan, Russian Federation, Tajikistan, Turkmenistan, and Uzbekistan are not WTO Members, although all of these apart from Turkmenistan are recognized as observer governments in the WTO and are in the process of accession to the WTO: see <www.wto.org/english/thewto_e/acc_e/acc_e.htm>; and <www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm>, accessed 21 June 2010. For further discussion of integration in this region, see Sherzod Shadikhodjaev, ‘Trade Integration in the CIS Region: A Thorny Path Towards a Customs Union’ (2009) 12 Journal of International Economic Law 555.

72 Signed 25 June 2001, entered into force 1 June 2004.

73 Art 24.

74 Signed 22 July 1993, entered into force 22 July 1993.

75 Art 14.

76 Signed by New Zealand, Chile and Singapore on 18 July 2005 and by Brunei Darussalam on 2 August 2005; entered into force for New Zealand and Singapore on 1 May 2006, for Chile on 8 November 2006, and for Brunei Darussalam on a provisional basis on 12 June 2006.

77 Trans-Pacific SEP, arts 3.13.1, 3.13.5. See (n 41) above regarding WTO safeguards relating to agriculture. See also OECD, ‘Regional Trading Arrangements and the Multilateral Trading System: Agriculture’ OECD Trade Policy Working Papers No 15 (OECD, Paris, 2005) 8–9.

78 See eg, Agreement on Trade in Goods under the Framework Agreement on Comprehensive Economic Cooperation Among the Governments of the Member Countries of the Association of Southeast Asian Nations (‘ASEAN’) and the Republic of Korea (signed 24 August 2006), art 9.10. Similarly, art 5.8 of the Agreement on Agriculture precludes recourse to both the special safeguard under that agreement and global safeguards under art XIX of the GATT 1994. See (n 42) and corresponding text.

79 See eg, ASEAN Protocol on Notification Procedures (signed 8 October 1998), art 1.

80 Signed 30 June 2007.

81 Lee, Y-S, ‘The Beginning of Economic Integration Between East Asia and North America?—Forming the Third Largest Free Trade Area Between the United States and the Republic of Korea’ (2007) 41 Journal of World Trade 1091Google Scholar, 1112–1113.

82 Signed 28 March 1983, deemed to have entered into force 1 January 1983.

83 Signed 18 August 1988, entered into force 18 August 1988.

84 Art 4.

85 Art 16.1(c).

86 Closer Economic Partnership Arrangement between China and Hong Kong, China (signed 29 June 2003, entered into force 1 January 2004), art 7; Closer Economic Partnership Arrangement between China and Macao, China, (signed 17 October 2003, entered into force 1 January 2004), art 7; Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C 115/47 (‘EU Treaty’), arts 28, 30; Consolidated Version of the Convention Establishing the European Free Trade Association (signed 21 June 2001, entered into force 1 June 2002) (‘EFTA’), art 36; cf Agreement on the European Economic Area (signed 2 May 1992, entered into force 1 January 1994) (‘EEA’), art 26 (anti-dumping measures abolished in most sectors, pursuant to Protocol 13).

87 R Teh, T Prusa and M Budetta, ‘Trade Remedy Provisions in Regional Trade Agreements’ WTO Staff Working Paper ERSD-2007-03 (Geneva, WTO, 2007) 28–29.

88 See eg, Free Trade Agreement between Canada and Chile (signed 5 December 1996, entered into force 5 July 1997), art M-01.

89 Signed 26 June 2003, entered into force 1 December 2004.

90 Art 18. See also Free Trade Agreement between the EFTA States and Singapore (signed 26 June 2002, entered into force 1 January 2003), art 16.

91 Free Trade Agreement between Canada and Chile (signed 5 December 1996, entered into force 5 July 1997), art M-01.

92 de Araujo, J, Macario, C and Steinfatt, K, ‘Antidumping in the Americas’ (2001) 35 Journal of World Trade 555CrossRefGoogle Scholar, 568–570. See also J Rivas-Campo and R Benke, ‘FTAA Negotiations: Short Overview’ (2003) 6 Journal of International Economic Law 661, 672.

93 B Hoekman, ‘Competition Policy and Preferential Trade Agreements’ World Bank Working Paper (World Bank, Washington DC, 2002) 14; B Hoekman, ‘Free Trade and Deep Integration: Antidumping and Antitrust in Regional Agreements’ Policy Research Working Paper (World Bank, Washington DC, 1998) 31; Teh, Prusa and Budetta (n 87) 27–29.

94 See WTO, Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WT/L/579 (2 August 2004) [1(g)] (removing competition from the Doha Work Programme). See also above n 24.

95 Taylor (n 24) 274–276.

96 See eg, Ahn, D, ‘Foe or Friend of GATT Article XXIV: Diversity in Trade Remedy Rules’ (2008) 11 Journal of International Economic Law 107, 125–126CrossRefGoogle Scholar; M Schaefer, ‘Ensuring that Regional Trade Agreements Complement the WTO System: US Unilateralism a Supplement to WTO Initiatives?’ (2007) 10 Journal of International Economic Law 585, 590.

97 Teh, Prusa and Budetta (n 87) 21. The authors find nine RTAs that abolish anti-dumping (including the EEA) and 47 with specific anti-dumping provisions (see 18–19). The authors reach a similar conclusion in Teh, Prusa and Budetta (n 4) 174–175.

98 Anti-Dumping Agreement, art 9.2 (emphasis added).

99 Anti-Dumping Agreement, arts 5.1, 5.2, 5.6.

100 Closer Economic Partnership Arrangement between China and Hong Kong, China (signed 29 June 2003, entered into force 1 January 2004), art 8; Closer Economic Partnership Arrangement between China and Macao, China, (signed 17 October 2003, entered into force 1 January 2004), art 8; EU Treaty, arts 28, 30; EFTA, art 16.2; cf EEA, art 26 (countervailing measures abolished in most sectors, pursuant to Protocol 13).

101 cf Teh, Prusa and Budetta (n 87) 22 (linking this trend to a reluctance to reduce or eliminate subsidies as part of an RTA); Gantz (n 16) 323 (suggesting that the absence of common subsidy policy weakens the argument for eliminating countervailing measures in RTAs).

102 Teh, Prusa and Budetta (n 4) 207.

103 Emphasis added.

104 See eg, Singapore–Australia Free Trade Agreement (signed 17 February 2003, entered into force 28 July 2003), art 8.2(b); Agreement between the Government of the Hashemite Kingdom of Jordan and the Government of the Republic of Singapore on the Establishment of a Free Trade Area (signed 16 May 2004, entered into force 22 August 2005), art 2.8.1(a); cf Anti-Dumping Agreement, arts 5.8, 9.1. Under these provisions, Members' authorities must terminate anti-dumping investigations when the dumping margin is de minimis, ie less than 2 per cent expressed as a percentage of the export price, and Members may impose an anti-dumping duty up to the amount of the dumping margin. Applying the ‘lesser duty rule’, which is recognized as ‘desirable’ but not required under the Anti-Dumping Agreement, means imposing an anti-dumping duty only to the extent necessary to remove injury to the domestic industry, where that can be achieved without imposing a duty at the level of the full margin of dumping.

105 See eg, Agreement between the EFTA States and the Republic of Korea (signed 15 December 2005, entered into force 1 September 2006), art 2.10.1; Free Trade Agreement between Korea and Singapore (signed 4 August 2005, entered into force 1 March 2006), art 6.2.3.

106 See eg, Government of Peru, Ministry of Foreign Commerce and Tourism, Executive Summary: Peru–EFTA Free Trade Agreement, Second Round of Negotiations in Lima, Peru (27 to 31 August 2007) 39; Free Trade Agreement between the Republic of Colombia and the EFTA States (signed 25 November 2008), arts 2.17-2.18.

107 Signed 17 December 1992, entered into force 1 January 1994.

108 Art 802.1 (emphasis added).

109 Art 801.

110 Ch 19, art 1904. See generally B Blonigen, ‘The Effects of NAFTA on Antidumping and Countervailing Duty Activity’ (2005) 19 The World Bank Economic Review 407; G Vega-Canovas, ‘Disciplining Anti-Dumping in North America: Is NAFTA Chapter Nineteen Serving its Purpose?’ (1997) 14 Arizona Journal of International and Comparative Law 479; Winham, G and Grant, H, ‘Antidumping and Countervailing Duties in Regional Trade Agreements: Canada-US FTA, NAFTA and Beyond’ (1994) 3 Minnesota Journal of Global Trade 1Google Scholar. See also M Hart, Decision at Midnight: Inside the Canada-US Free-Trade Negotiations (UBC Press, Vancouver, 1994) 388.

111 M Hart, ‘Introduction’ in M Hart (ed), Finding Middle Ground: Reforming the Antidumping Laws in North America (Centre for Trade Policy and Law, Ottawa, 1997) 1, 7; L Elena R de la Torre and J González, ‘Antidumping and Safeguard Measures in the Political Economy of Liberalization: The Mexican Case’ in Finger and Nogués (n 11) 205, 209–210.

112 Free Trade Agreement Between The Government of New Zealand And The Government of the People's Republic of China, signed 7 April 2008, entered into force 1 October 2008.

113 Art 64.1 (emphasis added).

114 Art 61.1.

115 Art 62.1.

116 Baldwin, Evenett and Low (n 22) 120.

117 See part IV.B.3.

118 See part IV.B.2.

119 Bown, C and McCulloch, R, ‘Nondiscrimination and the WTO Agreement on Safeguards’ (2003) 2 World Trade Review 327CrossRefGoogle Scholar, 347. See also 343–345.

120 These RTAs sometimes retain provisions for emergency measures to address balance of payment difficulties. See (n 41) above regarding WTO balance of payments safeguards.

121 EU Treaty, arts 3.1(a), 28, 30, 34.

122 MERCOSUR Free Trade Agreement (signed 26 March 1991, entered into force 29 November 1991), Annex IV, art 5. Anti-dumping and countervailing measures are allowed within MERCOSUR: MERCOSUR Council, Decision 22/02, Defensa Comercial Intrazona (6 December 2002).

123 ANZ Protocol, arts 1.1, 2.1 (eliminating tariffs, tariff quotas and quantitative import restrictions from 1 July 1990).

124 Singapore–Australia Free Trade Agreement (signed 17 February 2003, entered into force 28 July 2003), art 9; Agreement between New Zealand and Singapore on a Closer Economic Partnership (signed 14 November 2000, entered into force 1 January 2001), art 9.

125 See part IV.B.1.

126 See part II.B.2.

127 L/4903, BISD 26S/203 (28 November 1979).

128 See eg, Appellate Body Report, US—Gasoline, 16–17; Appellate Body Report, EC—Computer Equipment, [84]; Appellate Body Report, EC—Sardines, [200]; Appellate Body Report, India—Patents (US), [46]; Appellate Body Report, Japan—Alcoholic Beverages II, 10; Appellate Body Report, US—Carbon Steel, [61]; Appellate Body Report, US—Softwood Lumber IV, [59]; Panel Report, Chile—Price Band System, [7.76]; Panel Report, US—Gambling, [6.9]; Panel Report, China—Auto Parts, [7.165]; Panel Report, China—Intellectual Property Rights, [7.249], fn 244. See also M Lennard, ‘Navigating by the Stars: Interpreting the WTO Agreements’ (2002) 5 Journal of International Economic Law 17, 18–19; WTO Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard 25 September 1997, WT/DSB/M/37 (4 November 1997) 15 (statement by the European Communities); WTO Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 16 January 1998, WT/DSB/M/40 (18 February 1998) 3, 8 (statement by India); WTO Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 23 May 1997, WT/DSB/M/33 (25 June 1997) 10 (statement by the USA); WTO Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 23 October 2002, WT/DSB/M/134 (29 January 2003) [48] (statement by Mexico).

129 LT/UR/A-2/DS/U/1 (signed 15 April 1994, entered into force 1 January 1995).

130 See eg, J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (CUP, Cambridge, 2003) 305; J Trachtman, ‘Review of Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law’ (2004) 98 AJIL 855, 859.

131 See eg, Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep 7, [46], [99]; A Aust, ‘Vienna Convention on the Law of Treaties (1969)’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law online edition at <www.mpepil.com>, accessed 28 August 2009, [15]–[16]; I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press, Manchester, 1984) 14.

132 See eg, Pauwelyn (n 130) 475; International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group—Finalized by Martti Koskenniemi’ A/CN.4/L.682 (13 April 2006) [306].

133 Panel Report, Turkey—Textiles, [9.181]–[9.182].

134 Decision by the Arbitrators, EC—Hormones (US) (Article 22.6—EC), [51]; Decision by the Arbitrators, Brazil—Aircraft (Article 22.6—Brazil), [3.10].

135 Appellate Body Report,—Desiccated Coconut, 15; Appellate Body Report, Canada – Patent Term, [71]; Panel Report, EC—Sardines, [7.56]. See also Appellate Body Report, EC—Hormones, [128].

136 Appellate Body Report, US—Offset Act (Byrd Amendment), [296]–[297].

137 Panel Report, Korea—Procurement, [7.93].

138 Panel Report, Korea—Procurement, [7.123].

139 Appellate Body Report, EC—Sardines, [200].

140 Panel Report, Korea—Procurement, [7.96].

141 See generally A Mitchell, Legal Principles in WTO Disputes (CUP, Cambridge, 2008); Pauwelyn (n 130); T Voon, Cultural Products in the World Trade Organization (CUP, Cambridge, 2007) chs 4–5.

142 LT/UR/A/2 (signed 15 April 1994, entered into force 1 January 1995).

143 Trachtman (n 130) 858–859.

144 Marrakesh Agreement, art X:1, X:3, X:5.

145 WTO General Council, Amendment of the TRIPS Agreement: Decision of 6 December 2005, WT/L/641 (8 December 2005) [3].

146 WTO General Council, Kimberley Process Certification Scheme for Rough Diamonds: Decision of 15 December 2006, WT/L/676 (19 December 2006) [1]–[2].

147 On interim agreements, see generally Bartels, L, ‘“Interim Agreements” Under Art XXIV GATT’ (2009) 8 World Trade Review 339CrossRefGoogle Scholar.

148 See part IV.B.2.

149 GATT 1994, art XXIV:8. See part IV.B.1.

150 International Law Commission (n 132) [305]; T Cottier and M Foltea, ‘Constitutional Functions of the WTO and Regional Trade Agreements’ in Bartels and Ortino (eds) (n 16) 43, 55–56; J Mathis, Regional Trade Agreements in the GATT/WTO: Article XXIV and the Internal Trade Requirement (Cambridge University Press, Cambridge, 2002) 277–278.

151 Pauwelyn (n 130) 317.

152 ibid 317–318.

153 Mitchell, A and Voon, T, ‘Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law’ (2009) 43 Journal of World Trade 571Google Scholar, 596–598.

154 LT/UR/A-1C/IP/1 (signed 15 April 1994, entered into force 1 January 1995).

155 WTO, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products: Request for Consultations by Mexico, WT/DS381/1, G/L/858, G/TBT/D/32 (28 October 2008); WTO Dispute Settlement Body, Minutes of Meeting Held in the Centre William Rappard on 20 April 2009, WT/DSB/M/267 (26 June 2009) [77]. See also See Kwak, K and Marceau, G, ‘Overlaps and Conflicts of Jurisdiction between the World Trade Organization and Regional Trade Agreements’ (2003) 41 Canadian Yearbook of International Law 83Google Scholar; A Mitchell and T Voon, ‘PTAs and Public International Law’ in S Lester and B Mercurio (eds), Bilateral and Regional Trade Agreements: Commentary and Analysis (CUP, Cambridge, 2009) 114, 135–139; J Pauwelyn, ‘Adding Sweeteners to Softwood Lumber: The WTO–NAFTA “Spaghetti Bowl” Is Cooking’ (2006) 9 Journal of International Economic Law 197; Pauwelyn (n 130) 318.

156 See (n 1).

157 VCLT, art 41(1)(b)(ii).

158 See also Understanding on the Interpretation of Article XXIV of the GATT 1994, preamble (as encompassed in paragraph 1(c)(iv) of the language incorporating the GATT 1994 into the Marrakesh Agreement). On the history of art XXIV, see generally Chase, K, ‘Multilateralism Compromised: The Mysterious Origins of GATT art XXIV’ (2006) 5 World Trade Review 1CrossRefGoogle Scholar.

159 VCLT, art 41(1)(b)(i).

160 See also Understanding on the Interpretation of Article XXIV of the GATT 1994, preamble (as encompassed in paragraph 1(c)(iv) of the language incorporating the GATT 1994 into the Marrakesh Agreement).

161 Appellate Body Report, Turkey—Textiles, [57].

162 See part III.B.1, III.B.2.

163 See (n 46) and corresponding text.

164 On the three approaches, see generally WTO Committee on Regional Trade Agreements, Synopsis of ‘Systemic Issues’ Related to Regional Trade Agreements: Note by the Secretariat, WT/REG/W/37 (2 March 2000).

165 See eg, Ahn (n 96).

166 See eg, A Gobbi Estrella and Horlick, G, ‘Mandatory Abolition of Anti-dumping, Countervailing Duties and Safeguards in Customs Unions and Free-Trade Areas Constituted Between World Trade Organization Members: Revisiting a Long-standing Discussion in Light of the Appellate Body's Turkey-Textiles Ruling’ (2006) 40 Journal of World Trade 909Google Scholar.

167 See eg, M Matsushita, ‘Legal Aspects of Free Trade Agreements: In the Context of Article XXIV of the GATT 1994’ in M Matsushita and D Ahn (eds), WTO and East Asia: New Perspectives (Cameron May, London, 2004) 497, 513–514; Mavroidis, Messerlin and Wauters (n 27) 487–489.

168 See Mathis (n 150) 174.

169 Appellate Body Report, Argentina—Footwear (EC), [110], [114]; Appellate Body Report, US—Line Pipe, [198]–[199]; Appellate Body Report, US—Wheat Gluten, [99].

170 See (n 58) and corresponding text.

171 N Lockhart and A Mitchell, ‘Regional Trade Agreements under GATT 1994: An Exception and its Limits’ in A Mitchell (ed), Challenges and Prospects for the WTO (Cameron May, London, 2005) 217, 239.

172 Panel Report, US—Line Pipe, [7.141] (the Appellate Body declared these findings moot and of no legal effect: Appellate Body Report, US—Line Pipe, [199]); Lockhart and Mitchell (n 171) 237–238; Gobbi Estrella and Horlick (n 166) 913–914; Ahn (n 96) 120.

173 Panel Report, Argentina—Footwear (EC), [8.99], see also [8.97] (the Appellate Body declared these findings moot and of no legal effect: Appellate Body Report, Argentina—Footwear (EC), [110]).

174 Marrakesh Agreement, General interpretative note to Annex 1A.

175 See Appellate Body Report, Argentina—Footwear (EC), [81].

176 See (n 129) and corresponding text.

177 Panel Report, US—Line Pipe, [7.146], [7.150], [7.158], [7.160], [7.163] (the Appellate Body declared these findings moot and of no legal effect: Appellate Body Report, US—Line Pipe, [199]); Pauwelyn (n 59) 128–130; cf A Sykes, The WTO Agreement on Safeguards: A Commentary (Oxford University Press, Oxford, 2006) 234.

178 WTO Committee on Regional Trade Agreements, Systemic Issues Related to Other Regulations of Commerce: Background Note by the Secretariat—Revision, WT/REG/W/17/Rev.1 (5 February 1998), [15] (referring to a September 1990 decision).

179 ibid, fn 9 (referring to a Secretariat Note of 10 August 1988).

180 Gobbi Estrella and Horlick (n 166) 940–941. See also, contra, P Mavroidis, ‘If I Don't Do It, Somebody Else Will (Or Won't): Testing the Compliance of Preferential Trade Agreements with the Multilateral Rules’ (2006) 40 Journal of World Trade Law 187, 201.

181 Panel Report, Argentina—Footwear (EC), [8.97], [8.101] (Appellate Body declared these findings moot and of no legal effect: Appellate Body Report, Argentina—Footwear (EC), [110]); Ahn (n 96) 121; Pauwelyn (n 59) 127; Sykes (n 177) 233–234.

182 Gobbi Estrella and Horlick (n 166) 932.

183 See Lockhart and Mitchell (n 171) 217, 239; J Mathis, ‘Regional Trade Agreements and Domestic Regulation: What Reach for “Other Restrictive Regulations of Commerce”?’ in Bartels and Ortino (n 16) 79, 89.

184 Pauwelyn, J, ‘Comment: Nothing Dramatic (… Regarding Administration of Customs Laws)’ (2009) 8 World Trade Review 45CrossRefGoogle Scholar, 47, referring to Appellate Body Report, Turkey—Textiles. See also WTO Committee (n 178) [17].

185 Understanding on the Interpretation of article XXIV of the GATT 1994, [2].

186 See Sykes (n 177) 232.

187 See the critique in Pauwelyn (n 59) 132–135.

188 Panel Report, US—Line Pipe, [7.148], fn 137 (the Appellate Body declared these findings moot and of no legal effect: Appellate Body Report, US—Line Pipe, [199]); Lockhart and Mitchell (n 171) 226–228; cf Sykes (n 177) 235–236.

189 See parts II.A.3.

190 Marceau (n 27) 187–192. See also M Hart, ‘Introduction’ in M Hart (ed), Finding Middle Ground: Reforming the Antidumping Laws in North America (Ottawa, Centre for Trade Policy and Law, 1997) 1, 15.

191 See part III.B.1.

192 See parts III.B.1 and III.B.2.

193 See (n 181) and corresponding text.

194 cf Gantz (n 16) 43.