Faites vos jeux - Regulatory autonomy and the world trade organisation after Brazil tyres

Journal of Environmental Law

Volumn 20, Issue 1, 2008, Pages 121-136

  Van Calster, Geert ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

AUTONOMY; ENVIRONMENTAL LEGISLATION; REGULATORY APPROACH; WORLD TRADE ORGANIZATION;

BRAZIL; SOUTH AMERICA;

EID: 40749141061     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqn003     Document Type: Article

References (32)

1. Brazil - Measures affecting imports of retreaded tyres, WT/DS332/R, 12 June 2007.
2. Brazil - Measures affecting imports of retreaded tyres, WT/DS332/AB/R, 3 December 2007.
3. The General Agreement on Tariffs and Trade was established in 1947, and carried into the 1994 WTO Agreement. GATT is the lex generalis for the international regulation of trade in goods.
4. Mercado Común del Sur, or Southern Common Market, a regional trade agreement between Brazil, Argentina, Uruguay and Paraguay.
5. Article XX(b)'s room for protection of human, animal or life plant or health includes a wide variety of so-called 'environmental' protection measures, but not all. Article XX(g)'s room for protection of 'natural resources' entails a wider remit for environmental protection measures which do not strictly relate to life and health.
6. G Van Calster, 'The World Trade Organisation Panel report on Brazil Tyres: Advanced waste management theory entering the organisation?' (2007) 16 European Environmental Law Review, 304-08.
7. Korea - Measures affecting imports fo fresh, chilled and frozen beef, WT/ DS169/AB/R.
8. United States - Gambling, WT/DS285/AB/R.
9. United States - Import prohibition of certain shrimp and shrimp products, WT/DS58/AB/R.
10. European Communities - Measures affecting asbestos and asbestos containing products, WT/DS135/AB/R.
11. The Most Favoured Nation principle requires States not to discriminate in their treatment of trading partners; i.e. any privilege (e.g. a lower tariff on importation) granted to one partner has to be extended to all other States.
12. National treatment imposes an obligation upon States to treat imported products in the same way as 'like'domestic products: Amongst others in the way of taxes imposed upon them, marketing restrictions, etc.
13. The European Economic Community (now revamped as the EC full stop: European Community), as a customs union, abolished internal custom duties from day one, as opposed to the GATT, which is obviously far from a customs union and which cannot but take the tariff barriers down progressively.
14. That is the technical requirements which products have to meet in order for them to be allowed to be marketed in a given territory.
15. See Report of Panel on United States - Restrictions on imports of tuna (unadopted), reproduced in 30 ILM 1594 (1991) at 2.3 ff.
16. Report of Panel on United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/10 (1996); Report of the WTO Appellate Body in United States, Standards for reformulated and conventional gasoline, WT/DS2/AB/R (1996).
17. WT/DS58/AB/R.
18. Report of the Panel on European Communities - Measures affecting asbestos and products containing asbestos, WT/DS135/R, 18 September 2000.
19. WT/DS161/AB/R, Korea - Measures affecting imports of fresh, chilled and frozen beef (Korea-Beef), 11 December 2000.
20. See J Wiers, Trade and Environment in the EC and WTO (Europa Law, Groningen 2002) 182 ff.
21. GATT Dispute Settlement Panel Report on Thai-Restrictions on Importation of and Internal Taxes on Cigarettes, 1990, 30 I.L.M. 1122 (1991).
22. Korea-Beef para 161 ff.
23. Ibid para 164.
24. Ibid para 166.
25. WT/DS135/AB/R, 12 March 2001 (AB Asbestos), para 172.
26. Appellate Body Report on US - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, 7 April 2005.
27. AB US Gambling, para 308.
28. Contrast with the judgment of the European Court of Justice in PreussenElektra, where the Court did not pursue a proportionality test, effectively because the regulatory interest at stake (climate change) was judged to be of unbiased, overriding importance. See the author's Note sub Case C-379/98, PreussenElektra AG v Schleswag AG, Review of European Community and International Environmental Law, 2001, 335-37.
29. Note 6 above.
30. On due process and GATS, see a.o. Panagiotis Delimatsis, 'Due process and "good" regulation embedded in the GATS - disciplining regulatory behaviour in services through Article VI of the GATS' (2006) 10 Journal of International Economic Law, 13-50.
31. Joost Pauwelyn on 5 December 2007 on the World Trade Law blog: http://worldtradelaw.typepad.com/ielpblog/.
32. See excellently Donald Regan, 'The meaning of 'necessary' in GATT Article XX and GATS Article XIV: The myth of cost-benefit balancing' (2007) 6 World Trade Review, 347-69.