Is the General Agreement on Tariffs and Trade article XIX "Unforeseen developments clause" still effective under the agreement on safeguards?

Journal of World Trade

Volumn 37, Issue 6, 2003, Pages 1119-1151

  Mueller, Felix ^a  

^a JUSTUS LIEBIG UNIVERSITY   (Germany)

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EID: 65749102427     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2003058     Document Type: Article

References (333)

1. John H. Jackson, The World Trade Organization (London: Royal Institute of International Affairs, 1998), p. 12;
2. Jagdish Bhagwati, "Fifty Years: Looking Back, Looking Forward", in From GATT to the WTO: The Multilateral Trading System in the New Millennium, WTO Secretariat (The Hague: Kluwer, 2000), p. 57;
3. Bernard M. Hoekman and Michel M. Kostecki, The Political Economy of the World Trading System (2nd edn, Oxford: Oxford University Press, 2001), p. 37.
4. John H. Jackson, The Jurisprudence of GATT and the WTO (Cambridge: Cambridge University Press, 2002), p. 113;
5. Robert Howse, "Adjudicative Legitimacy and Treaty Interpretation in International Trade Law, The Early Years of the WTO Jurisprudence", in J.H.H. Weiler (ed.), The EU, The WTO and the NAFTA (Oxford: Oxford University Press, 2001), p. 35;
6. John H. Jackson, Dispute Settlement and the WTO: Emerging Problems, WTO Secretariat (The Hague: Kluwer, 2000), p. 67;
7. John H. Jackson, The WTO Dispute Settlement Understanding - Misunderstandings on the Nature of Legal Obligations, 91 A.J.I.L. (1997), 60;
8. Steven P. Croley and John H. Jackson, WTO Dispute Procedures, Standard of Review, And Deference to National Governments, 90 A.J.I.L. (1996), 193;
9. Jackson, as note 1 above, p. 59;
10. Chi Carmody, Remedies And Conformity Under The WTO Agreement, 5 J.I.E.L. 2 (2002), 307.
11. Ernst-Ulrich Petersmann, How to Reform the United Nations: Lessons from the International Economic Law Revolution, 2 U.C.L.A. J. Int'l L. and Foreign Affairs (1997), 185;
12. Ernst-Ulrich Petersmann, How to Reform the United Nations: Constitutionalism, International Law and International Organizations, Leiden J. Int'l L. (1997), 421.
13. It is notable that unlike with the original GATT 1947, where a consensus of the Member States was required in order for dispute settlement rulings to become binding, under the DSU a ruling will be adopted as binding unless all Members, including the winning party, vote against its adoption (negative consensus). See Howse, as note 2 above, at p. 35.
14. On 4 April 2003, 146 countries were Members of the WTO compared to 104 members in 1995. Total world trade (exports) in goods, services and intellectual property stood at US$ 6.6 trillion in 1998, at US$ 6.8 trillion in 1999, at US$ 7.6 trillion in 2000 and at US$ 7.5 trillion in 2001 while total world trade stood at US$ 3.9 trillion in 1993, compare WTO Annual Reports, at .
15. Andrea Maneschi, Comparative Advantage in International Trade (Cheltenham: Elgar, 1998), gives a detailed description of the historical and economical perspective of the theorem of comparative advantage. Hoekman and Kostecki, as note 1 above, pp. 21, 108,
16. Douglas A. Irwin, Free Trade Under Fire (Princeton, NJ: Princeton University Press, 2002), p. 21.
17. Jagdish Bhagwati, Protectionism (Cambridge, MA: MIT Press, 1988);
18. Jagdish Bhagwati, Free Trade Today (Princeton, NJ: Princeton University Press, 2002);
19. Irwin, as note 6 above, at p. 55;
20. Enrico Colombatto, An Explanation of the Dynamics of Protectionism, Open Economies Rev. (2000), 279.
21. On 1 August 2003, 298 disputes were brought to the WTO. Thirty-three of those disputes are safeguard disputes. The respective cases and dispute numbers are as follows: Argentina - Certain Measures on the Protection of Patents and Test Data (DS196); Argentina - Safeguard Measures on Imports of Footwear (DS121, DS123); Argentina - Definitive Safeguard Measures on Imports of Preserved Peaches (DS238); Chile - Provisional Safeguard Measure on Mixed Edible Oils (DS226); Chile - Definitive Safeguard Measure on Imports of Fructose (DS278); Chile - Price Band System and Safeguard Measures Relating to Certain Agricultural Products (DS207); Chile - Safeguard Measure on Sugar (DS228, DS230); Columbia - Safeguard Measure on Imports of Plain Polyester Filaments from Thailand (DS181); European Communities - Provisional Safeguard Measures on Imports of Certain Steel Products (DS260); Hungary - Safeguard Measure on Imports of Steel Products (DS159); Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products (DS98); Slovakia - Safeguard Measure on Imports of Sugar (DS235); United States - Safeguard Measure against Imports of Broom and Corn Brooms (DS78); United States - Safeguard Measure on Imports of Fresh, Chilled or Frozen Lamb Meat (DS177, DS178); United States - Definitive Safeguard Measures on Imports of Certain Steel Products (DS248, DS249, DS251, DS252, DS253, DS254, DS258, DS259, DS274); United States - Definitive Safeguard Measures on Imports of Steel Wire Rod and Circular Welded Carbon Quality Line Pipe (DS214); United States - Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Pipe (DS202); United States - Definitive Safeguard Measures on Imports of Wheat Gluten (DS166); United States - Measures Affecting Imports of Women's and Girls' Wool Coats (DS32); United States - Measures Affecting Imports of Woven Wool Shirts and Blouses (DS33); Argentina - Transitional Safeguard Measures on Certain Imports of Woven Fabrics of Cotton and Cotton Mixtures Originating in Brazil (DS190); United StatesDTransitional Safeguard Measure on Combed Cotton Yarn from Pakistan (DS192).
22. John H. Jackson, The World Trading System (2nd edn, Cambridge, MA: MIT Press, 1997), p. 191;
23. Yong-Shik Lee, Safeguard Measures: Why Are They Not Applied Consistently With the Rules?, 36 J.W.T. 4 (August 2002), 641.
24. The recent steel dispute between the United States and the European Union makes clear that safeguard measures can easily escalate and cause a sustained distortion of the equilibrium of the world trading system. See Matthew J.S. Graham, Special Protection Is Not the Solution to Save Domestic Steel: A Critique of the Bush Steel Initiative, 12 Minn. J. Global Trade (2003), 199.
25. Among other Members, the European Communities requested the establishment of a Panel. The Panel on 11 July 2003 concluded that the safeguard measures imposed by the United States on the imports of certain steel products are inconsistent with the Agreement on Safeguards and Article XIX GATT 1994. See Panel Report, WT/DS248/DS249/DS251/DS252/ DS253/DS254/DS258/DS259/R, United States - Definitive Safeguard Measures on Imports of Certain Steel Products (US - Certain Steel Products);
26. Lee, ibid., at 666.
27. Also see Christoph Hoelscher, A Comment on Commission Regulation (EC) No. 560/2002, Imposing Provisional Safeguard Measures Against Certain Steel Products, 36 J.W.T. 6 (December 2002), 1081;
28. Thomas Weishing Huang, China Launches its Safeguards Enforcement: A Critical Assessment, 37 J.W.T. 2 (April 2003), 329.
29. This article does not deal with safeguard provision such as Article 5 of the Agreement on Agriculture, Article 6 of the Agreement on Textiles and Clothing and Article X of the GATS.
30. Japan, for instance, has long refrained from resorting to trade policy instruments such as safeguard measures. Under the WTO framework, however, Japan expressed a change in trade policy from a reliance on grey-area measures to a rule-oriented approach. See Norio Komuro, Japan's Safeguard Law and Practice, 35 J.W.T. 5 (October 2001), 847;
31. Dongsheng Zhou and Ilan Vertinsky, Can protectionist trade measures make a country better off? A study of VERs and minimum quality standards, J. Business Research (2002), 227;
32. J. Michael Finger, GATT Experience with Safeguards: Making Economic and Political Sense of the Possibilities That the GATT Allows to Restrict Imports (Washington, D.C.: World Bank, 1998), p. 5.
33. Peter Bernardi, The Great Escape, 7 D.C.L. J. Int'l L. & Prac. (1998), 73;
34. Zhou and Vertinsky, ibid.;
35. Yong-Shik Lee, Revival of Grey-Area Measures?, 36 J.W.T. 1 (February 2002), 155;
36. Robert S. Pindyck and Daniel L. Rubinfeld, Microeconomics (5th edn, London: Prentice-Hall, 2001), p. 588, demonstrate the eroding economical effect of grey area measures on the welfare with reference to the automobile voluntary export restraint agreement, established between the United States and Japan in 1981.
37. Graham, as note 10 above, at 214, qualifies the recent US steel safeguard measure as a VER-tool with eroding effects on the national welfare.
38. Hoekman and Kostecki, as note 1 above, at 305, 311, demonstrate that in the 1980s, VERs covered some 10 percent of world trade.
39. Bernardi, as note 13 above, at 69;
40. Ernesto M. Hizon, The Safeguard Measure/VER Dilemma: The Jekyll and Hyde of Trade Protection, 15 N.W. J. Int'l L. & Bus. (1994), 105;
41. Lee, as note 13 above, at 155.
42. Also see Hoekman and Kostecki, as note 1 above, at 304 and Fig. 9.1.
43. Jackson, as note 9 above, at 210;
44. Yong-Shik Lee, Destabilization of the Discipline on Safeguards?, 35 J.W.T. 6 (December 2001), 1235;
45. Lee, as note 9 above, at 642.
46. Zhou and Vertinsky, as note 12 above, at 227;
47. Hizon, as note 14 above, at 110.
48. Michael Sánchez Rydelski, The WTO and EC Law on Safeguard Measures, EuZW (1999), 654.
49. Debra Steger, Appellate Body Jurisprudence Relating to Trade Remedies, 35 J.W.T. 5 (October 2001), 799.
50. Jackson, as note 9 above, at 177;
51. Hoekman and Kostecki, as note 1 above, at 303.
52. Jackson, ibid., at 191.
53. Appellate Body Report, WT/DS202/AB/R, United States - Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe From Korea, para. 80.
54. WTO Annual Report 2003 with reference to the US safeguards on certain steel products, at p. 19, .
55. Jackson, as note 9 above, at 191;
56. Lihu Chen and Yun Gu, China's Safeguard Measures under the New WTO Framework, 25 Fordham Int'l L.J. (2002), 1169-1186;
57. Lee, as note 15 above, at 1235;
58. Yong-Shik Lee, Review of the First WTO Panel Case on the Agreement on Safeguards, 33 J.W.T. 6 (December 1999), 27.
59. Debra Steger, as note 18 above, at 799;
60. Yong-Shik Lee, The WTO Agreement on Safeguards: Improvement on the GATT Article XIX?, 14 Int'l Trade J. 3 (2000), 284;
61. Yong-Shik Lee, Critical Issues in the Application of the WTO Rules on Safeguards, 34 J.W.T. 2 (April 2000), 135;
62. Lee, as note 15 above, at 1241;
63. Lee, as note 9 above, at 647,
64. Andreas F. Lowenfeld, International Economic Law (New York: Oxford University Press, 2002), p. 89.
65. Compare contrary main arguments of the parties, Panel Report, WT/DS98/R, Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products (Korea - Dairy), paras 4.142 and 7.36.
66. Panel Report, Korea - Dairy, para. 7.38;
67. Appellate Body Report, WT/DS98/AB/R, Korea - Dairy, para. 74.
68. Steger, as note 18 above, at 802;
69. Appellate Body Report, WT/DS121/AB/R, Argentina - Safeguard Measures on Imports of Footwear (Argentina - Footwear), para. 84;
70. Panel Report, Korea - Dairy, para. 7.38;
71. Appellate Body Report, Korea - Dairy, para. 74.
72. Panel Report, Korea - Dairy, para. 7.38;
73. Appellate Body Report, Korea - Dairy, para. 74;
74. Wilfred Jenks, The Conflict of Law-Making Treaties, B.Y.I.L. (1953), 425.
75. Elisabetta Montaguti and Maurits Lugard, The GATT 1994 and Other Annex 1A Agreements: Four Different Relationships?, 3 J.I.E.L. (2000), 475;
76. Gabrielle Marceau, Conflicts of Norms and Conflicts of Jurisdictions, 35 J.W.T. 6 (December 2001), 1081.
77. Panel Report, Korea - Dairy, para. 7.47;
78. Panel Report, WT/DS121/R, Argentina - Footwear, para. 8.67.
79. Appellate Body Report, WT/DS177/178/AB/R, United States - Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat (US - Lamb), para. 72;
80. Appellate Body Report, Argentina - Footwear, para. 85;
81. Appellate Body Report, Korea - Dairy, para. 85;
82. Panel Report, WT/DS207/R, Chile - Price Band System and Safeguard Measures (Chile - PriceBand), para. 7.134.
83. Lowenfeld, as note 24 above, at 89;
84. Lee, The WTO Agreement, as note 24 above;
85. Lee, as note 15 above;
86. Steger, as note 18 above;
87. Rydelski, as note 17 above, at 656.
88. Panel Report, WT/DS202/R, US - Line Pipe from Korea, para. 7.295;
89. Panel Report, WT/DS207/R, Chile - Price Band, para. 7.134;
90. Panel Report, WT/DS238/R, Argentina - Definitive Safeguard Measure on Imports of Preserved Peaches (Argentina - Preserved Peaches), para. 7.10;
91. Panel Report, US - Certain Steel Products, para. 10.31.
92. Panel Report, Korea - Dairy, para. 7.45.
93. Ibid., paras 7.42, 7.47;
94. Panel Report, Argentina - Footwear, paras 8.67-8.69.
95. Panel Report, Korea - Dairy, para. 7.45.
96. Ibid., para. 7.47.
97. Appellate Body Report, Korea - Dairy, para. 82;
98. Appellate Body Report, Argentina - Footwear, para. 85;
99. Appellate Body Report, US - Lamb, para. 70.
100. Appellate Body Report, WT/DS2/AB/R, United States - Standards for Reformulated and Conventional Gasoline (US - Gasoline): Appellate Body Report, WT/DS8/DS10/DS11/AB/R, Japan - Taxes on Alcoholic Beverages (Japan - Alcoholic Beverages), p. 12;
101. Appellate Body Report, WT/DS103/AB/R, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products (Canada - Dairy Products), para. 133;
102. Appellate Body Report, Korea - Dairy, para. 80;
103. Appellate Body Report, Argentina - Footwear, para. 88.
104. Appellate Body Report, Korea - Dairy, para. 80;
105. Appellate Body Report, Japan - Alcoholic Beverages, p. 12;
106. Appellate Body Report, Canada - Dairy Products, para. 133;
107. Appellate Body Report, Argentina - Footwear, para. 88.
108. The principle of effectiveness is a fundamental tenet of treaty interpretation, also known as "effet utile" or as "ut res magis valeat quam pereat". The Appellate Body's principle of effectiveness in the interpretation of treaties is not unique though. On the contrary, the International Court of Justice as well as the European Court of Justice and the European Court of Human Rights developed similar concepts. See Ambatielos case, (1953) I.C.J. Reports, p. 10;
109. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, (1951) I.C.J. Reports, p. 15;
110. and Case Concerning Rights of United States Nationals in Morocco, (1952) I.C.J. Reports, pp. 196-199.
111. Also compare the ECJ's concept of "effet utile": Leberpfennig, EJC Reports 1970, 825, para. 5;
112. van Duyn v. Home Office, EJC Reports 1974, 1337, para. 12;
113. Simmenthal, EJC Reports 1978, 629;
114. Becker v. Finanzamt Münster, ECJ Reports 1982, 53;
115. Francovich v. Italy, EJC Reports 1991, I-5357, para. 33.
116. Also see Paul Craig and Gráinne de Búrca, EU Law (Oxford: Oxford University Press, 2002), p. 96.
117. Moreover, see the ECHR's concept of a "living instrument": Loizidou v. Turkey, judgment of 23 March 1995 (preliminary objections), Series A no. 310, pp. 26-27, § 71, with further reference;
118. Matthews v. United Kingdom, application no. 24833/94, judgment of 18 February 1999.
119. Appellate Body Report, Japan - Alcoholic Beverages, p. 12;
120. Appellate Body Report, Argentina - Footwear, para. 81;
121. Appellate Body Report, Korea - Dairy, para. 81.
122. Appellate Body Report, Argentina - Footwear, para. 92;
123. Appellate Body Report, Korea - Dairy, para. 85.
124. Panel Report, Argentina - Preserved Peaches, para. 7.12;
125. Panel Report, US - Certain Steel Products, para. 10.37.
126. Lee, WTO Agreement, as note 24 above;
127. Lee, as note 15 above, at 1239.
128. Panel Report, WT/DS177/DS178/R, US - Lamb, para. 7.19.
129. Appellate Body Report, Argentina - Footwear, para. 75.
130. Lee, WTO Agreement, as note 24 above;
131. Lee, Critical Issues, as note 24 above;
132. Lee, as note 15 above, at 1241;
133. Lee, as note 9 above, at 647.
134. Marceau, as note 29 above, gives a detailed description concerning the definition of "conflicts" and the different approaches in defining this term broadly and narrowly. Also see WTO Analytical Index (1st edn, Geneva: WTO Publications, 2003), Vol. II, p. 1284.
135. Marceau, as note 29 above;
136. Montaguti and Lugard, as note 29 above;
137. Jenks, as note 28 above;
138. Panel Report, WT/DS54/DS55/DS59/DS64/R, Indonesia - Certain Measures Affecting the Automobile Industry (Indonesia - Automobile Industry), para. 14.28, with reference to Encyclopedia of Public International Law (1984), p. 468.
139. Concerning these principles, see Michael Lennard, Navigating by the Stars: Interpreting the WTO Agreements, 5 J.I.E.L. 1 (2002), 70;
140. and Jenks, as note 28 above.
141. A conflict arises only where simultaneous compliance with the obligations of different instruments is impossible. See Encyclopedia of Public International Law (Amsterdam: Elsevier, 1984), p. 468;
142. Marceau, as note 29 above;
143. Jenks, as note 28 above.
144. See Appellate Body Report, WT/DS60/AB/R, Guatemala - Anti-Dumping Investigation Regarding Portland Cement From Mexico, para. 65, with reference to the relationship between the DSU and Article 17 of the Anti-Dumping Agreement;
145. and Panel Report, Indonesia - Automobile Industry, para. 14.28, concerning the relationship between the GATT and the SCM Agreement.
146. Jenks, as note 28 above;
147. Marceau, as note 29 above, at 1084.
148. Appellate Body Report, Guatemala - Cement From Mexico, as note 52 above.
149. Jenks, as note 28 above;
150. Marceau, as note 29 above, at 1084;
151. R. Jennings and A. Watts, Oppenheim's International Law, Vol. I, Parts 2-4 (London: Longman, 1992), p. 1280;
152. Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, B.Y.I.L. (1975), 237;
153. Ian Sinclair, The Vienna Convention on the Law of Treaties (1984), p. 97.
154. Also see WTO Analytical Index, as note 49 above, Vol. II, at 1284.
155. The general rules of interpretation contained in the Vienna Convention on the Law of Treaties form part of the "customary rules of interpretation of public international law", which the Appellate Body has been directed, by Article 3.2 of the DSU, to apply in seeking to clarify the provisions of the agreements covered by the WTO Agreement; see WTO Analytical Index, as note 49 above, Vol. II, at 1277.
156. Lennard, as note 51 above, at 17;
157. Montaguti and Lugard, as note 29 above, at 473;
158. Howse, as note 2 above, at 52;
159. Daya Shanker, The Vienna Convention on the Law of Treaties, the Dispute Settlement System of the WTO and the Doha Declaration on the TRIPs Agreement, 36 J.W.T. 4 (August 2002), 723.
160. Appellate Body Report, Korea - Dairy, para. 77;
161. Appellate Body Report, Argentina - Footwear, para. 83;
162. Appellate Body Report, US - Lamb Meat, paras 69, 70.
163. Appellate Body Report, Korea - Dairy, para. 77;
164. Appellate Body Report, Argentina - Footwear, para. 83.
165. The Appellate Body pointed out that this is only valid with the exception of special safeguard measures taken pursuant to Article 5 of the Agreement on Agriculture or Article 6 of the Agreement on Textiles and Clothing.
166. Panel Report, Argentina - Preserved Peaches, para. 7.12,
167. Panel Report, US - Certain Steel Products, para. 10.36.
168. Panel Report, US - Certain Steel Products, ibid.
169. M.C.E.J. Bronckers, Voluntary Export Restraints and the GATT 1994 Agreement on Safeguards, in J.H.J. Bourgeois, F. Berrod and E. Fournier (eds), The Uruguay Round Results: A European Lawyers' Perspective (Brussels: European University Press, 1995), p. 275;
170. M. Trebilcock and R. Howse, The Regulation of International Trade (London: Routledge, 1999), p. 228.
171. Lee, WTO Agreement, as note 24 above;
172. Lee, as note 15 above, at 1239;
173. Lee, Critical Issues, as note 24 above;
174. Lee, as note 9 above, at 135.
175. Lee, as note 15 above, at 1239;
176. Lee, Critical Issues, as note 24 above.
177. Lee, as note 15 above, at 1240.
178. Ibid.
179. Ibid.
180. Henrik Horn and Petros C. Mavroidis, United States - Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia: What Should be Required of a Safeguard Investigation? Paper prepared for the American Law Institute project: Principles of Trade Law: The World Trade Organization, 17 March 2003, at .
181. Ibid., at footnote 14.
182. Ibid.
183. Panel Report, US - Certain Steel Products, para. 10.37.
184. Ibid.
185. Lee, as note 15 above, at 1240;
186. Lee, Critical Issues, as note 24 above.
187. Para. 2 reads: "If no agreement is reached within 30 days in the consultations under paragraph 3 of Article 12, then the affected exporting Members shall be free, not later than 90 days after the measure is applied, to suspend, upon the expiration of 30 days from the day on which written notice of such suspension is received by the Council for Trade in Goods, the application of substantially equivalent concessions or other obligations under GATT 1994, to the trade of the Member applying the safeguard measure, the suspension of which the Council for Trade in Goods does not disapprove."
188. Lee, as note 15 above, at 1240;
189. Lee, Critical Issues, as note 24 above.
190. Lee, WTO Agreement, as note 24 above, at 288;
191. Lee, as note 15 above, at 1243.
192. Lee, WTO Agreement, as note 24 above, at 288;
193. Lee, as note 15 above, at 1244.
194. Lee, as note 15 above, at 1244.
195. Ibid.
196. Lee, WTO Agreement, as note 24 above, at 283;
197. Lee, as note 15 above, at 1245.
198. It is conceivable that a customs union enters into multilateral trade negotiations and reduces a tariff rate of a certain product. On the assumption that this concession negatively affects exports of this product or a like product of one of the member states of the customs union and causes a serious injury or a threat thereof to the domestic industry of the exporting member, this member state might request the customs union to apply a safeguard measure on behalf of this member state. Certainly the footnote to Article 2.1 of the Agreement on Safeguards is not identical to Article XIX:1(b) GATT. However, the application of a safeguard measure by a customs union on behalf of a Member state is, at least to some extent, comparable to the application by a third country.
199. Appellate Body Report, US - Gasoline;
200. Appellate Body Report, Japan - Alcoholic Beverages, at p. 12;
201. Appellate Body Report, Canada - Dairy Products, para. 133;
202. Appellate Body Report, Korea - Dairy, para. 80;
203. Appellate Body Report, Argentina - Footwear, para. 88.
204. See note 41 above.
205. Appellate Body Report, Korea - Dairy, para. 80;
206. Appellate Body Report, Japan - Alcoholic Beverages, p. 12;
207. Appellate Body Report, Canada - Dairy Products, para. 133;
208. Appellate Body Report, Argentina - Footwear, para. 88.
209. Panel Report, Argentina - Footwear, para. 8.66;
210. Lee, as note 15 above, at 1240;
211. Lee, Critical Issues, as note 24 above, at 136.
212. Panel Report, Argentina - Footwear, para. 8.66.
213. Ibid.
214. Ibid.
215. Lee, as note 15 above, at 1240;
216. Lee, Critical Issues, as note 24 above, at 136.
217. Appellate Body Report, Argentina - Footwear, para. 88.
218. Oppenheim's International Law, as note 55 above, at p. 1280;
219. Fitzmaurice, as note 55 above, at 237;
220. Sinclair, as note 55 above, at 97.
221. In accordance with paragraph 12 of the Ministerial Declaration of 14 November 2001, and section 13 of the Ministerial Decision on Implementation-Related Issues and Concerns of 14 November 2001, the Committee on Safeguards discussed outstanding implementation issue "tiret 84" during 2002. Tiret 84 set forth a proposal by Colombia to amend Article 9.1 of the Agreement on Safeguards. The Committee on Safeguards reported to the Trade Negotiations Committee on 5 December 2002 that there was no consensus on that proposal, see document G/SG/59 as of 17 January 2003.
222. Doha Declaration Implementation, WT/MIN01/17, 20 November 2001.
223. Appellate Body Report, Argentina - Footwear, para. 44.
224. Appellate Body Report, Korea - Dairy, para. 77;
225. Appellate Body Report, Argentina - Footwear, para. 83;
226. Appellate Body Report, US - Lamb, paras 69, 70.
227. Appellate Body Report, Korea - Dairy, para. 68;
228. Appellate Body Report, Argentina - Footwear, para. 76;
229. Appellate Body Report, US - Lamb, para. 65.
230. Appellate Body Report, Korea - Dairy, para. 88;
231. Appellate Body Report, Argentina - Footwear, para. 95.
232. Appellate Body Report, US - Lamb, para. 72;
233. Appellate Body Report, Argentina - Footwear, para. 92;
234. Appellate Body Report, Korea - Dairy, para. 85;
235. Panel Report, WT/DS207/R, Chile - Price Band, para. 7.134.
236. Appellate Body Report, Korea - Dairy, para. 84,
237. Appellate Body Report, Argentina - Footwear, para. 91, with reference to the New International Dictionary and Black's Law Dictionary.
238. Also see WTO Analytical Index, as note 49 above, Vol. I, at p. 333.
239. Appellate Body Report, Korea - Dairy, para. 84;
240. Appellate Body Report, Argentina - Footwear, para. 91.
241. Horn and Mavroidis, as note 68 above, state that "unforeseen" in the sense of Article XIX:1(a) GATT 1994 means "unlikely" (p. 16).
242. Appellate Body Report, Korea - Dairy, para. 84.
243. Appellate Body Report, Argentina - Footwear, para. 91.
244. Appellate Body Report, Korea - Dairy, para. 86;
245. Appellate Body Report, Argentina - Footwear, para. 93.
246. Ibid.
247. Report of the Intersessional Working Party on the Complaint of Czechoslovakia Concerning the Withdrawal by the United States of a Tariff Concession under the Terms of Article XIX ("Hatters' Fur"), GATT/CP/106, adopted 22 October 1951,
248. cited with approval in Appellate Body Report, Argentina - Footwear, para. 96;
249. Appellate Body Report, Korea - Dairy, para. 89;
250. Panel Report, US - Certain Steel Products, para. 10.74;
251. Panel Report, Argentina - Preserved Peaches, para. 7.29.
252. Also see Horn and Mavroidis, as note 68 above, who give different possibilities regarding the time at which the import surge should have been unforeseen (p. 19).
253. Report of the Intersessional Working Party on the Complaint of Czechoslovakia Concerning the Withdrawal by the United States of a Tariff Concession under the Terms of Article XIX ("Hatters' Fur"), GATT/CP/106, adopted 22 October 1951.
254. This interpretation was proposed by the representative of Czechoslovakia, and was accepted by the majority of the working party with the exception of the United States.
255. As note 107 above, p. 10, para. 9.
256. Appellate Body Report, Korea - Dairy, para. 89;
257. Appellate Body Report, Argentina - Footwear, para. 96.
258. Appellate Body Report, Korea - Dairy, para. 86;
259. Appellate Body Report, Argentina - Footwear, para. 93.
260. Panel Report, US - Certain Steel Products, para. 10.42.
261. Appellate Body Report, Argentina - Footwear, para. 91;
262. Appellate Body Report, Korea - Dairy, para. 84.
263. Panel Report, US - Certain Steel Products, para. 10.43.
264. Ibid.
265. Horn and Mavroidis, as note 68 above, at p. 17.
266. Ibid.
267. Lee, as note 15 above, at 1241;
268. Lee, Critical Issues, as note 24 above;
269. Lee, as note 9 above, at 647.
270. Jackson, as note 9 above, at p. 186;
271. Trebilcock and Howse, as note 62 above, at p. 228;
272. Richard Senti, WTO (Zurich: Schulthess, 2000), p. 424.
273. Lee, as note 15 above, at 1241;
274. Lee, Critical Issues, as note 24 above;
275. Lee, as note 9 above, at 647.
276. Rydelski, as note 17 above, at 659.
277. Jackson, as note 9 above, at p. 190.
278. Rydelski, as note 17 above, at p. 656.
279. Lee, as note 15 above, at p. 1241.
280. Ibid., at p. 1242.
281. Ibid.
282. Ibid.
283. Ibid., at p. 1241;
284. Lee, Critical Issues, as note 24 above;
285. Lee, as note 9 above, at p. 647.
286. In essence it may even be said that, seen in the long term, the industry in need of a protection ought not to survive and that the resources so employed ought to be transferred to occupations having a greater comparative efficiency. Irwin, as note 6 above, at p. 55;
287. Senti, as note 119 above, at p. 425.
288. The national welfare losses caused by the recent US steel initiative to safeguard the domestic steel industry are described by Graham, as note 10 above, at 199.
289. Alan O. Sykes, Comparative Advantage and the Normative Economics of International Trade Policy, 1 J.I.E.L. 1 (1998), 57.
290. Panel Report, US - Lamb, para. 7.77;
291. Hoekman and Kostecki, as note 1 above, at p. 303;
292. Trebilcock and Howse, as note 62 above, at p. 230, give different theoretical rationales for the safeguard regime;
293. Lowenfeld, as note 24 above, at p. 87.
294. Jackson, as note 9 above, p. 175;
295. Bernardi, as note 13 above, at 71.
296. See the Preamble to the Agreement on Safeguards. Panel Report, US - Lamb, para. 7.76.
297. See at note 19 above.
298. Jackson, as note 9 above, at p. 190;
299. Hoekman and Kostecki, as note 1 above, at pp. 311, 314.
300. Jackson, as note 9 above, at p. 191;
301. Sykes, as note 130 above, 60.
302. Jackson, as note 9 above, at p. 190;
303. Hoekman and Kostecki, as note 1 above, at pp. 311, 314.
304. Panel Report, Argentina - Preserved Peaches, para. 7.10;
305. Panel Report, US - Certain Steel Products, para.10.31.
306. In US - Certain Steel Products, the Panel gave examples of what can constitute an unforeseen development. The Panel accepted that the Russian and the Southeast Asian financial crises, at least conceptually, could be considered unforeseen developments that did not exist at the end of the Uruguay Round. Moreover, the Panel stressed that Article XIX does not preclude consideration of the confluence of several developments as "unforeseen developments". Panel Report, US - Certain Steel Products, paras 10.75-10.99.
307. Panel Report, Argentina - Preserved Peaches, para. 7.19.
308. Ibid., paras 7.21, 7.35.
309. Ibid., paras 7.18, 7.24.
310. Appellate Body Report, Argentina - Footwear, para. 131, with reference to paras 91-98 of the same report.
311. Panel Report, Argentina - Preserved Peaches, para. 7.18.
312. Ibid., para. 7.24.
313. Panel Report, US - Certain Steel Products, para. 10.104,
314. with reference to Appellate Body Reports, Argentina - Footwear, para. 92;
315. Appellate Body Report, Korea - Dairy, para. 85.
316. Panel Report, US - Certain Steel Products, para. 10.115.
317. Ibid.
318. Appellate Body Report, US - Lamb, para. 72.
319. Appellate Body Report, Argentina - Footwear, para. 92;
320. Appellate Body Report, Korea - Dairy, para. 85.
321. Panel Report, US - Certain Steel Products, para. 10.52.
322. Panel Report, Argentina - Preserved Peaches, para. 7.23;
323. Panel Report, US - Certain Steel Products, para. 10.67.
324. Panel Report, Argentina - Preserved Peaches, para. 7.33.
325. Panel Report, US - Certain Steel Products, para. 10.49.
326. Panel Report, US - Certain Steel Products, paras 10.55-10.58.
327. Bernardi, as note 13 above, at 71.
328. Sykes, as note 130 above, at 49.
329. Howse, as note 2 above, at p. 38.
330. Howse, as note 2 above, at p. 51.
331. However, S.P. Shukla, From the GATT to the WTO and Beyond, World Institute for Development Economic Research, Working Paper 195 (Tokyo: United Nations University, 2000), at p. 274, criticizes that the WTO attaches much importance to the criterion of free trade in its decision making while national values, in particular those of developing countries, are not taken note of sufficiently.
332. Lowenfeld, as note 24 above, at p. 94.
333. Ibid.