Should principles of competition policy be incorporated into WTO law through non-violation complaints?

Journal of International Economic Law

Volumn 2, Issue 3, 1999, Pages 413-421

  Roessler, Frieder ^a  

^a NONE   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033449972     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/2.3.413     Document Type: Article

References (31)

1. These remarks were made at the WTO Symposium on Trade and Competition in Geneva, on 17 April 1999, and are based in part on: Frieder Roessler, 'The Concept of Nullification and Impairment in the Legal System of the World Trade Organization', in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997), 123-42. For a complete review of the GATT's jurisprudence on non-violation cases see Ernst-Ulrich Petersmann, 'Violation-Complaints and Non-Violation Complaints in Public International Trade Law', in German Yearbook of International Law, Volume 34 (1991) 175-229. The best analysis of the origin of the concept of nullification and impairment concept is contained in Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (2d ed., Butterworth Legal Publishers: USA 1990) 37-47. The article by Thomas Cottier and Krista Nakadakavukaren Schefer 'Non-violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future' in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997) 143-83, traces the evolution of the non-violation concept over time. The note by the WTO Secretariat on 'Non-Violation Complaints and the TRIPS Agreement' (Document IP/C/W/124 of 28 January 1999) contains a well-organized and up-to-date analysis of the experience with non-violation complaints under the GATT and the WTO.
2. These remarks were made at the WTO Symposium on Trade and Competition in Geneva, on 17 April 1999, and are based in part on: Frieder Roessler, 'The Concept of Nullification and Impairment in the Legal System of the World Trade Organization', in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997), 123-42. For a complete review of the GATT's jurisprudence on non-violation cases see Ernst-Ulrich Petersmann, 'Violation-Complaints and Non-Violation Complaints in Public International Trade Law', in German Yearbook of International Law, Volume 34 (1991) 175-229. The best analysis of the origin of the concept of nullification and impairment concept is contained in Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (2d ed., Butterworth Legal Publishers: USA 1990) 37-47. The article by Thomas Cottier and Krista Nakadakavukaren Schefer 'Non-violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future' in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997) 143-83, traces the evolution of the non-violation concept over time. The note by the WTO Secretariat on 'Non-Violation Complaints and the TRIPS Agreement' (Document IP/C/W/124 of 28 January 1999) contains a well-organized and up-to-date analysis of the experience with non-violation complaints under the GATT and the WTO.
3. These remarks were made at the WTO Symposium on Trade and Competition in Geneva, on 17 April 1999, and are based in part on: Frieder Roessler, 'The Concept of Nullification and Impairment in the Legal System of the World Trade Organization', in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997), 123-42. For a complete review of the GATT's jurisprudence on non-violation cases see Ernst-Ulrich Petersmann, 'Violation-Complaints and Non-Violation Complaints in Public International Trade Law', in German Yearbook of International Law, Volume 34 (1991) 175-229. The best analysis of the origin of the concept of nullification and impairment concept is contained in Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (2d ed., Butterworth Legal Publishers: USA 1990) 37-47. The article by Thomas Cottier and Krista Nakadakavukaren Schefer 'Non-violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future' in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997) 143-83, traces the evolution of the non-violation concept over time. The note by the WTO Secretariat on 'Non-Violation Complaints and the TRIPS Agreement' (Document IP/C/W/124 of 28 January 1999) contains a well-organized and up-to-date analysis of the experience with non-violation complaints under the GATT and the WTO.
4. These remarks were made at the WTO Symposium on Trade and Competition in Geneva, on 17 April 1999, and are based in part on: Frieder Roessler, 'The Concept of Nullification and Impairment in the Legal System of the World Trade Organization', in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997), 123-42. For a complete review of the GATT's jurisprudence on non-violation cases see Ernst-Ulrich Petersmann, 'Violation-Complaints and Non-Violation Complaints in Public International Trade Law', in German Yearbook of International Law, Volume 34 (1991) 175-229. The best analysis of the origin of the concept of nullification and impairment concept is contained in Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (2d ed., Butterworth Legal Publishers: USA 1990) 37-47. The article by Thomas Cottier and Krista Nakadakavukaren Schefer 'Non-violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future' in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997) 143-83, traces the evolution of the non-violation concept over time. The note by the WTO Secretariat on 'Non-Violation Complaints and the TRIPS Agreement' (Document IP/C/W/124 of 28 January 1999) contains a well-organized and up-to-date analysis of the experience with non-violation complaints under the GATT and the WTO.
5. These remarks were made at the WTO Symposium on Trade and Competition in Geneva, on 17 April 1999, and are based in part on: Frieder Roessler, 'The Concept of Nullification and Impairment in the Legal System of the World Trade Organization', in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997), 123-42. For a complete review of the GATT's jurisprudence on non-violation cases see Ernst-Ulrich Petersmann, 'Violation-Complaints and Non-Violation Complaints in Public International Trade Law', in German Yearbook of International Law, Volume 34 (1991) 175-229. The best analysis of the origin of the concept of nullification and impairment concept is contained in Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (2d ed., Butterworth Legal Publishers: USA 1990) 37-47. The article by Thomas Cottier and Krista Nakadakavukaren Schefer 'Non-violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future' in Ernst-Ulrich Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System, Studies in Transnational Economic Law, Volume 11 (Kluwer Law and Taxation Publishers: Deventer and Boston 1997) 143-83, traces the evolution of the non-violation concept over time. The note by the WTO Secretariat on 'Non-Violation Complaints and the TRIPS Agreement' (Document IP/C/W/124 of 28 January 1999) contains a well-organized and up-to-date analysis of the experience with non-violation complaints under the GATT and the WTO.
6. BISD 9S/172.
7. Section 301(d)(3)(B)(I)(IV) of the Trade Act of 1974 , Pub. L. 93-618, 88 Stat. 1978 (19 USC 2411).
8. Quoted from mimeographed text of the 1994 Wincott Lecture, delivered on 25 October 1994 in London.
9. See for instance Article 14.1 of the Agreement on Technical Barriers to Trade and Article 19 of the Agreement on Agriculture.
10. See for instance Article 17.3 of the Agreement on the Implementation of Article VI of the GATT 1994 (Anti-dumping Agreement).
11. See Articles 4 and 7 of this Agreement.
12. See Article XXIII of the GATS.
13. Article 64 of the TRIPS Agreement.
14. Article 26:2 of the DSU.
15. Article 26:1 of the DSU.
16. UN document E/PC/T186, at 53.
17. See Hudec, The GATT Legal System and World Trade Diplomacy, 44-46.
18. I owe this point to Armin von Bogdandy, 'The Non-Violation Procedure of Article XXIII:2 GATT - Its Operational Rationale', in 26 Journal of World Trade 4 (1992) at 110-11.
19. Article 44 of the Vienna Convention on the Law of Treaties.
20. The WTO Secretariat paper cited in note 1 describes the negotiation history of the non-violation provisions in the TRIPS Agreement but does not reveal what functions these provisions were intended to fulfil in the minds of the negotiators.
21. See Hudec, The GATT Legal System and World Trade Diplomacy, 44.
22. See Donald Moggridge (ed.), The Collected Writings of John Maynard Keynes, Vol. XXVI: Activities 1941-1946, Shaping the Post-War World, Bretton Woods and Reparations (Cambridge University Press: Cambridge 1980).
23. See, for instance, Article XIV of the Reciprocal Trade Agreement Between the United States of America and Mexico of 23 December 1942.
24. Panel report on Japan - Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R.
25. Working Party report on The Australian Subsidy on Ammonium Sulphate, BISD II/188-196.
26. Panel report on Treatment of Sardines, BISD 1S/53-59.
27. See Appellate Body report on Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, at 28, 29.
28. See the references to this principle in European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Arbitration by the European Communities under Article 22.6 of the DSU, WT/DS27/ARB, para. 5.38.
29. Panel report on EEC - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal Feed Proteins, DS28/R, BISD 39S/91-127.
30. Footnote 12 of the Subsidies Agreement makes clear that the existence of nullification or impairment resulting from a subsidy 'shall be established in accordance with the practice of application of these provisions'.
31. Panel report on Japan - Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R., para. 10.37.