Domande esame European and international trade law

INTERNATIONAL TRADE AND ENVIRONMENTAL PROTECTION: INDICATE ISSUES AND CASES

The GATT and WTO treaties do not contain specific environmental clauses. However, the WTO preamble affirms that we must make the best use of the world's resources in accordance with the goal of sustainable development, looking to protect and preserve the environment and also to improve the means of doing that in a manner coherent with the needs and preoccupations of different levels of economic development.

Respecting environmental protection rules imposes a heavy burden on industries in developed countries, which complain that in developing countries they do not have to pay such costs. Developing countries, on the other hand, argue that from the mid-18th century to the mid-20th century there was no regulation in Western countries, which permitted them to develop completely. And, in their opinion, environmental protection is used as an excuse to prevent other countries from developing.

Trade affects the...

environment through international transportation. The main issues are pollution, waste disposal, climate change, global warming, greenhouse effect, etc. An example is the case of tuna and dolphins (Mexico vs. the United States). That is, there was a prohibition for the United States to capture tuna putting dolphins in danger. In addition, the United States have been also prohibited tuna that come from countries which no adopted norms "dolphin-friendly".

2) EXPLAIN THE GATT/WTO RULES IN THE FIELD OF SUBSIDIES, BOTH TO PRODUCTION AND TO EXPORT, AND THE COUNTERVAILING MEASURES THAT OTHER COUNTRIES MAY INTRODUCE.

Subsidies given by member countries to domestic industries, distort trade and have long been a controversial issue in trade policy.

There are three cases of subsidies:

1. Country A subsidizes exports of products to Country B, damaging domestic producers of similar products in Country B. This is the classic countervailing duty scenario.
2. Country A subsidizes exports to Country C and,

As a result, compresses Country B's exports to Country C's market.

Country A subsidizes its own domestic production, reducing Country B's exports to Country A's market.

The last two cases do not involve the imposition of countervailing duties since the subsidized products do not move from Country A's market to Country B's market.

According to the GATT, any country that gives subsidies must notify them to the other GATT members, indicating the nature and extent of the subsidies. In addition, member countries may impose countervailing duties on imports of products that have been subsidized in their country of origin; but these may not exceed the subsidies. Under Article VI, countervailing duties may not be imposed except if it has been established that the effect of subsidies causes serious injury to an established domestic industry or substantially retards the establishment of a domestic industry producing similar products.

With the Uruguay Round, was reached a much

more detailed agreement on subsidies (SCMAgreement); according to which, all WTO members had to make the commitment and so it is a multilateral and not a plurilateral agreement. The agreement takes an approach to red, yellow and green light subsidies.
"Red light": are prohibited and includes subsidies given on the basis of export performance and subsidies given for the purchase of domestic goods.
"Green light": until 2000 and includes subsidies for R&D, aid to disadvantaged regions and environmental subsidies.
"Yellow light": Very large notion of subsidy, are considered actionable and includes grants, loans, guarantees, failure to collect taxes, purchase of goods, etc.
3) SAFEGUARD MEASURES: WHY, WHEN HOW?
Safeguard measures are established by Article XIX of the GATT Treaty.
If, as a result of unexpected circumstances, a product is imported in larger quantities and under conditions that cause serious injury to domestic products, the member state may suspend or

restrict the importation. This article is invoked as an alternative to anti-dumping measures.

Before introducing safeguard measures, it is obligatory to notify the third country and initiate consultation/negotiation procedures.

To understand if these are unexpected circumstances, it is necessary to look at previous binding tariff negotiations. Imports causing injury must be recent, unexpected, strong, quantitatively and qualitatively significant.

Serious injury means that there must be a significant overall deterioration of the domestic industry, and the elements to be considered are the rate and amount of increased imports; the market share occupied by imported products; and changes in sales, production, capacity utilization, profits and employment.

There must be a causal link between increased imports and serious injury. The safeguard measure applies to all imported products, independent of the country of origin, and quotas must be allocated on the basis of market shares in a previous period.

It is possible to discriminate among importers if it can be shown that only some of them have registered a disproportionate increase. These measures may not exceed 4 years and must be gradually eliminated; countries affected by safeguard measures may not retaliate for the first 3 years.

Safeguard measures protect domestic industries but damage domestic consumers who cannot buy cheaper or higher quality imported products.

1. IL PRINCIPIO DI NON DISCRIMINAZIONE

   The principle of non-discrimination is established in Article III of the GATT treaty. This article provides that a product once it enters in the domestic market should be treated exactly like a domestic product. There should be no discrimination and no higher domestic taxes on imported products than on domestic products. So, domestic taxes and other domestic charges should not be applied in a way that offers protection to domestic production. The principle of non-discrimination stipulates that a WTO member should not discriminate between

similar products from different trading partners (giving them "most-favored-nation" status) and should not discriminate between its own products and similar foreign products (giving them "national treatment"). So, if products are considered "like products," the principle tells us that we need to determine if the foreign product is treated in a discriminatory way, so less favorably, than the domestic product or another foreign product.

An example of violation of the principle of non-discrimination is the case of the GSP India versus the EU. The panel decided that the EU applied GSPs in a discriminatory way because it was given to a closed list of developing countries that accepted labor standards, environmental protection, and anti-drug measures.

2) L'EVOLUZIONE DEL DISPUTE SETTLEMENT DAL GATT AL WTO E ESPORRE UN CASO

GATT Articles XXII and XXIII provided the normative basis for the system of dispute settlement among states. If a country does not respect GATT rules,

To resolve this problem it can present the case to the special GATT panels instituted by the President. Dispute resolution in GATT is influenced by its "anemic institutional structure" (Trebilcock).

In a first phase disputes were presented to the President.

In a second phase disputes were discussed by five-member working groups nominated by the President with a diplomatic and conciliatory function.

In the third phase, disputes were presented to ad hoc working groups.

Failure to respect the remedies authorized the Member to take retaliatory measures.

When the WTO was established, the GATT system continued to apply to ongoing disputes. Then, Dispute Resolution Understanding (DSU) was introduced in 1995. The understanding is a true international treaty and for this reason mandatory for all WTO states. States are obliged to use the procedural mechanisms of the understanding and respect the results when they want to obtain justice.

One of the main features is that there are rigid terms.

In the consultation and dispute resolution process. According to the procedure established by the DSU, the complaining party must preliminarily initiate consultations with the other party, and if they do not resolve the dispute within 60 days, the complaining party may request the establishment of an ad hoc panel. Panel members (usually 3, sometimes 5) are proposed by the Dispute Settlement Secretariat from a list of experts and submitted to the parties. If the parties do not agree on the names of the panel members, the choice is made by the WTO Director-General. The panel must make conclusions that will help the Dispute Settlement Body (DSB) make recommendations or make judgments. Once the final decision is made, members have 15 months to comply with the decision. The panel or Appellate Body determines what measures the losing party must take, and if the losing party fails to comply with the DSB decision, retaliatory trade sanctions may be authorized.

3) TECHNICAL BARRIERS TO TRADE (TBT) FUNZIONI,

CASI E DIFFERENZE TRA PRODOTTI E SERVIZI

The Agreement on Technical Barriers to Trade (the "TBT Agreement") was signed during Tokyo Round and during the Uruguay Round was extended to all members. It establishes rules and procedures related to the development, adoption, and enforcement of voluntary product standards, mandatory technical regulations, and procedures used to determine if a particular product satisfies those standards or regulations. The objective of the TBT Agreement is to prevent the use of technical requirements as unnecessary barriers to trade. TBT measures must be proportional, and the technical standards must be made public and available. Standards, technical regulations, and conformity assessment procedures should be developed and applied on a non-discriminatory basis, should be developed and applied in a transparent manner, and should be based on relevant international standards and guidelines.

A typical technical obstacle is, for example, the difference between

The British plug and the German plug; therefore, an adapter must be purchased. The typical technical barrier to trade for exporting to the UK is that the plug must be changed if you want to export to, for example, Germany, but this incurs a higher cost. When exporting, costs are higher because you have to adapt the product to that market, including voltage requirements.

1) DIFFERENZE TRA GATT E GATS

GATT and GATS are agreements of the WTO. GATT is the General Agreement on Tariffs and Trade and it concerns goods; while the GATS is the General Agreement on Trade in Services and concerns services. Part of the GATT are the agreements regarding Agriculture, Health regulations for farm products (SPS), Textiles and clothing, Product standards (TBT), Investment measures, Anti-dumping measures, Customs valuation methods, Pre-shipment inspection, Rules of origin, Import licensing, Subsidies and countermeasures, and Safeguards. Part of the GATS are the agreements regarding movement of natural persons.

1. Air transport
2. Financial services
3. Shipping