3.Enforcement of WTO Code of Conduct enforcement of the wto code of conduct 2 principles methos of ensuring implementation 1.wto ds[ surveillance and supervision technique] 2.wto trade policy review mechanism tprm[conflict reso] Ds is set in Understanding on rules and procedures governing the settlement of dispute [dsu;the understanding annex 2 wto agreement]. It is single integrated structure for conflict resolution in rela to various trade agreement under Uruguay round,include trade in service and ip right Dsb is set up to admin rules and procedures under the understanding. dsb,general council works differently.Dsb has own chair man+different rule of procedures. Duty is to admin ds rule and procedures ตาม understanding, do decision making function so has power to set up,adopt panel n appellate body report,authorize use of sanction, monitor implement of rule and recommendation. Gc= to meet appropriate to discharge function of dsb according to understanding Key features= its near automatic jurisdiction over dispute,its efficient and well developed adjudicatory and appellate system and its rule-oriented approach.ds give security and predictability in trading system Access to DS procedures 1.ds is available to member of wto only, private parties cant directly involve but private party can request their gov to initiate complaint. 2.wto code does not provide national mechanism to facilitate the scrutiny of gov decision in this respect but decision whether not to bring proceeding against another member is matter of foreign trade policy. Reason gov not bring proceed 1.it is not in its general interest to bring proceeding in the lgith of relationship with other members. 2.gov may not want a clear ruling coz it may engage in similar conduct but in different context 3.particular private interest may not have sufficient leverage over gov. discretion 4.wto member do not have to show specific legal interest in asking for consultation under wto Wto practice now there is no requirement fo exhaustion of local remedies before bring proceeding to wto แต่ถึงแม้ruleนี้แต่ many commentator advocate exhaustion of local remedies coz 1. Many of Uruguay agreement concerns with private right ex ip right 2. Many agreements provide judi review procedures domestically3.exhaustion of local remedies is customary inter law so it deals with treaty interpretation. Member can be represented by private lawyer in panel and appellate proceeding by delegation only. As private party ex ngo cant bring proceeding at the wto but can make submission in disputes b/w members.submission of ngo can be adopted as part of a member’s submission or can be directly placed in dispute settlement proceeding. Ds panel will decide whether or not to accept submission. Jurisdiction Juris of dsb extends to whole of wto code.dsb is forum for settlement of dispute arising from wto agreement and understanding so all dispute b/w member and wto are internalized.problem is unclear rela b/w wto DS system and recourse to bila mechanism in regional trade agreements. Jurisdiction of dsb is limited 1. The rules and procedures under understanding are subject to special provision in relation to ds in many Uruguay round agreement 2. Dsb is not empowered to adopt in abstract interpretations of multi trade agreement or the agreement establishing wto as it is exclusive authority of ministerial conference and gernaral council. So the aim of ds=settle dispute not to clarify law outside context of dipute 3. Where a measure is no longer in force at the time of dispute proceeding, a panel may not well consider the compatibility of the measure with wto code. 4. Dispute proceeding may not relate to claim by a member not stated in the terms of dispute reference. 5. Dsb relies deeply on consent and willingness of the parties,in ensuring implementation of its determinations so dsb ensure enforcement by authorization of retaliatory measure Interpretation Interpretation must be in accordance with rules of interpret of public inter law in art 31 32 vianna convention. the exclusive authority to adopt interpretation is with ministerial conference and general council so application by a dispute settlement panel of provision of an agreement involves interpretation. dispute panel must work on conformity of wto code. Appellate body is required to consider issues of law covered in panel report and regal interpretation developed by panel. Problem = what are differences b/w adoption of panel and appellate body by dsb vs adoption by GC or ministerial conference of a decision. 1.gc and min conference= formally political body while dsb is political in its character 2.decision making in gc is to be arrive by ¾ voting majority whild des is through consensus. 3.gc is to act on basis of a recommendation by council overseeing the functioning of the agreement but it is no clear who will decide when an interpretation has been arrive at.the distinction between process of applying the wto code and interpreting it is not self-evidenct and not define in wto code.there is no time scales by which an interpretative decision is required to have been adopted,unlike the case with proceedint under dsb. There is problem of distincition b/w interpretation and amendment.interpretattive decision concern membership at large and this decision would be more difficult to adopt and membership should make positive contribution. A member has a distinct right, distinct from ds procedure to get an authoritive interpret of wto code but there is a danger that interpretative decision could have legis character for members who are not amongtsht the ¾ majority. Art 9 of agreement establishing wto stipulate that interpretative process should not be used to undermine art 10.this means interpret process must not result in disguised amendment of wto Decision making Dsb decision making is done via consensus [gt when on member present at the meeting of dsb formally objects to the proposed decision so it means that all panel and appellate reports will auto be adopted by dsb unless there is a decision by consensus against adoption of the reports. negative consensus is required to block the establishment of a panel or adoption of panel or appellate body reports but it is difficult to occur.dsb is almost automatic juris over dispute without the need for member’s consent for the dispute to proceed for adjudication. DS methods The principle and most discussed one is adjudication through the panel process[subject to appeal].other methods = consultation procedures, good office, conciliation, mediation and arbitration.imp in deploying all technique= consensual resolution b/w members. There are many features in the understanding. good office, confiliation and mediation, arbitration is alternative mean which the parties are to agree in advance to abide by the arbitration decision. some of provision in Understsanding about implementation of recommendation,rules,compensatioin, suspension will apply to arbi process. arbi award have to consistent with wto code. Causes of action giving rise to the DS procedures Circumstance is in art 22 23 gatt1947 and now in 1994=3 causes of action 1.violation complaint = violation of wto code.can enter where the benefit accrued under agreement covered by understanding is being nullified,impaired or attaining to agreement obj is impeded. Duty of disproving nullification and impairment of benefit is on the member againstฝ่าย complaint [this is irrefusable] 2.there is no violation complaint, not involving a violation of the code.the aggrieved party can have excess to the avilabble conflict resolution mechanisms where benefit accrued is nulliefid or impaired,attainment is impeded as consequences of trade measure application whether it conflict with provision of agreement in questions. So this case, there is no need to evidence a violation/breach of wto code but still the complainant has to show that there has been nullification/impairment of benefit resulting from trade measure/omission.duty to prove is on complainant.basis of non-violation complaint is roolted mainly in need to protect reciprocal tariff concession,nego under art 2 gat 1994 from being undermined by non tariff/other policy measure.non viola cn use in other situation too. Conclusion ,normally non vioa has to be a gov. measure involved in nulli/impairment of benefit+ has impoact on competitive condition set up for tariff binding.interferance in competitive condition must be unexpected 3.situation complaint.the aggrieved party can have access to the avialbe conflict resolution where a benefit ตามagreement is nullified impaired,obj attainment is impeded as result of situation other than violation application of measureไม่ว่าจะเป็น violation of agreement? Availability 3อย่าง not uniform through out Uruguay trade agreement คือ in GATT only vio,non vio complaint are allowed,TRIPS non vio,situation complaint=not to be used for initial 5 years of agreement[art 64.2 trips. In both gats trips,there is no tariff binding to protect. Member has wide discretion in deciding whether to bring proceeding[member decide whether it’s fruitful. A mem has interest in bringing proceeding even if it is not actual exporter or is a producer on small scale Panel system Stone of the understanding is consultation and panel system.consultation process provide opportunities to parties to understand each other’s position. Consultation has limited time period.ขอทำby writing but must confidential, all consultation ต้องแจ้งไปที่ dsb ,resolution of dispute nder consulation must consistent with wto code.ถ้าใช้ consulationไม่ก่อผลด้าน+, the aggrieved party may ask for the establishment of panel but most dispute will be resolve in consultation stage. AGต้องคิดก่อนว่าทำ dsจะก่อ fruitful?คือจะได้ solution remedies ที่ procedure will facilitate. A member can always get autho interpretation of a provision of wto code from ministerial conference/general council.ลักษณะ solution ที่ prefer= has +quality,acceptable to party and consistent with wto code. When consultation fail, complaing party has right to set up panel for adjudication of its complaint เว้น dsb [decide by consensus]not set up panel. Panel consists of well-qualified [meaning not clear]gov and non gov individual+wto secretarist+ individual study inter trade law. So panelist do not need to have legal knowledge. Working as panelists, member are to serve in their individual capacity not as representative of gov or org. impartiality of panelist= ensured by disclosure of relevant info by panelist,declaration they made.imp=nationals of member gov in dispute are not to serve on panel except agree to be that. Panel consists of 3 members เว้นparties in disputeตกลงเป้นอย่างอื่น=มีห้าคน. Critism =panelist are partime an unable to fully keep abreast with development in inter trade.panel must make objective assessment of the matter before do futher,must consider evidence [do not distort,reject], must act in good faith. Panel must produce final report within 6 months of its establishment.if urgent case,3 months.but no case submit to wto exceed 9 months.panel deliberation must be secretion must be secret.however there is no guide how to reach final decision if openion different.they will consult to reach mutually satisfactory solution.the final report is to be adopted with in 16 days since issue to members at dsb meeting. But final report will not be adopted if one of the parties to the dispute formally notifies DSB of its intention to appeal/if it is decided by DSB[consensus]not to adopt report. Panel process have character of both adversarial system and inquisitorial system+ they are not open to public but as it is not open to public, it was critisim that lack transparency. Appellate system Party can appeal to Appellate body[ab] about final panel report. Permanent AB must be perceived as a permanent internal court/tribunal. Member all them as member of ab although they work as inter judges. Right to appeal is on law link panel report,problem about legal interpretation.now ab don’t have jurisdiction to send case back to panel for reexamine the fact. Ab consists of7 persons,appoint 4 years period.composit of ab reflect wto membership. 3 are from big c = us eu jap โดยเปนคนจาก recognized authority,have knowledge in legal and inter trade [panellistไม่ต้องมี].ab member must not associated with any gov.impartial is ensure via relavent disclosure.ต่างกับ panelist, for ab, nationality is no bar in residing over appeal.เวลาappeal,3 member will be picked to prevent which member will be the judge.rule=select on rotation ใช้หลัก random selectivity and unpreditabilty and opportunity for all members regardless of origin. 3 will be in appeal, the others still are kept informed of proceeding and expect to meet to discuss appeal.proceeding of ab must be confidential and openion must secret.ab must conclude its deliberation no later then 90 days from appeal notification date.ab don’t have mandate to remand a case back to panel.Appeallate report is to be adopted by dsb and unconditionally accepted by the parties.but by consensus,dsb may decide not to adopt appealate report [must do within 30 days since issue report. A report =high standard and give guidance about wto interpret code. Remedies Sanction available at disposal of panel+ab = varied,dependว่าเปน violation complaint? Remedies 1.recommendation/rule for withdrawal of the offending trade policy measures.2.authorisation to suspend trade consession 3 compensation These are not mutually exclusive but there is no provision for compensation for loss during procedures.2 principle for sanctions are 1.objective of removal of inconsistent measure=imp 2. Redress must be proportional to nullification or impairment must be observed Case violation complaint-measure should be taken in conformity with agreement or withdraw,for non-violation,situation complaint-only a rule and or recommendation should be made.however, recommendation should not add or destroy right and obligations in agreement.In non violation, mutually satisfac adjustment is via compensation. Panel/ab report must be implemented promptly ถ้าไม่ได้ member will be given a reasonable time to implement recommendation. And must inform dsb its intention about implement. Reasonable time ถ้าตกลงไม่ได้ก็ใช้ arbitrationกำหนด[will bind]ซึ่งยังไง normally should not exceed 15 months from set up panel date except there is circumstances to shorten or widen but legitimately decide on extended time framework remains unclear.แต่มีปัญหาว่า where there is disagreement whtere there has been implementation in conformity with appellate panel report recommendation,there is some confusion whether dsb has to refer the issue back to original panel or whether the party can go ahead and ask for authorization of suspension or concession.in case EC banana, DSB agree to reconvene panal to examine whethere EC implement is in conformity with original recommend? Nego compliance has effect in blocking implement of adopted panel,ab report so there is need for futher reform that is “supervised nego” for implementation process.this will be use esp. for case developing c [unequal party]. For compensation payment/suspend consession,this is temporary measures.it will be used only when recommendation for withdrawal of offending trade measure is not done in reasonable time.gatt/wto practice has not order about restitution even for custom duties and internal tax illegally collected as wto focus on expectation not trade effect and it’s hard to calculate cost of damage.When member fail to nego compenstation,then member can invite dsb to suthorise suspension of concession or other obligations under agreemtn. Dsb will authorize suspension as request except dsb by consensus decide to reject request.non party to dispute don’t have authority to suspend concession/obligation.suspension of trade concession is to be on discriminatory basis. But as suspending concession can be counterproductive+ ineffective then there is need of further dispute settlement reform on possibly fine and collective measures, Cross-sanction,cross retaliation are allow under these conditions 1.the suspension of concession/other obligation should relate to same sectorsที่มี violation/nullification/impairment.if this is not satisfy then the complaining party seek suspension of concession/obligations in other sectors under same agreement.if this not satisfy and situation is serious then complaining party seek suspension of concession and obligation under another agreement.member can ask arbitration. Suspension of concession/another obligation will b used until measure that was violated has been removed. Surveillance mechanism is used for panel implementation =dsb will monitor implement of adopted panel reports, implement of report is to be kept on dsb agenda for certain time period.member against whom the panel report made is required to submit writing of progress report on implementation of recommendations and rules for dsb meeting for a certain time period.merit of surveillance depends on quality of recommendation / ruling.Depend on reliance on the consent of parties in dispute in the process of formulation of panel reports + in time schedule for implementation of recommendation and ruling,the value of surveil is diminished. Procedural aspects of Understanding 1.Understanding has time schedules in all stages to ensure that the proceeding are conducted and concluded in expedious manner so time for panel report adoptin/Ap report by DSB is not to exceed 9 months case no appeal, in case appeal 12 months.there is concern about time appropriate. It is quite short and then case complex need time extenstion. 2.3rd party interest are secured in many ways so 3rd state that have substancial trade interest effected can join consultation process but the right to join is not auto. That is addressee [of request for consultation]consider that member has substantial interest. Same to 3rd party, can join the panel process if it has substantial interest.3rd state with substantial trade interest affected can make written submission to AB and then may be given opportunity tobe heard by AB.but 3rd party don’t have original right to appeal if no appeal was made by third party.when 3rd pary consider that the measure subject to dispute nullifies or impairs benefits it entitle to get then it may recourse itself to DS procedure. 3.the panels are given specific authority to find info and expert openion from individual or body in jurisdic of mem state.the panel must notify member authorities of its intention to seek info.panel can get info from ngo and imf too. Developing members Critisim, ds mechanism not deter developing c from using it but wto induces complexity and deter many developing c from bring case to wto. Understanding contains special provision relating to developing c and least developing c 1.case of complaining developing meme, provision of decision of contracting parties april 5 1966 is aviate as alternative to the corresponding provision in understanding. 2. where developing c and developed state are party to dispute, then upon the request of developing c,there should be at least 1 panelist form developing c. 3.where developing c involve, consultation process can be longer if all parties agree+panel report should indicate the manner in which the standard of differntiaal and more-favoratble treatment for developing c accepted has been taken into account in panel report. 4.about surveillance of implementation of recommendation and ruling,special attention is to be paid in issues affecting developing c.DSB is authorized to take further appropriate action into account. 5.for least developing c,panel and AB must take special circumstances of least developing c into account. 6.where nullification or impairment is result from measure taken by least developing mem,the complaining party is invitied to ask compensation or authorisartion to suspend concession/other obligations in agreement. 7.when cannot find solution at cons]ultation stage,least devel mem may ask for his office, conciliation and mediation before request a panel [ask from director general or chairman of dsb. Ds system offer many challenges to developing c. 1.provision is difficult to enforce 2.general consensual character of the process of adjudication allows for power based solutions which could militate agisint interest of developing c. 3.the system essentially relies on the capacity of the parites to dispute to suspend concessions or obligations, the efficacy of such enforecement is contingent on the quality of the concession and obligations of vis a vis the other party. 4.system does not allow 3rd state to retaliate on behalf of another member . developing member runs dangers of taking on developed member which may retaliate in other spehers or force a poor implement agreement. 5.developing member have problem in access to relevant expertise to engage in litigation. Conclusion. Understanding bring changes 1.understanding deals with one of major shortcoming of previous system by removing the veto of complaining party from very establishment of panel and adoption of panel report. 2.the express characterization of understanding as exclusive framework for the resolution of the conflict in inter trading system is imp. 3.wider array of dispute settlement techniques are made available. 4.there has ben a general improvement in the system as a whole ex specified time schedules at all stages of conflict management, higher and more suitable qualifications of panelist, greater responsivenss to the particular exigencies of dispute. 5.spefific position of the developing and least-developed states is taken in to account in more developed and integrated fashion Bad of the understanding 1. Lack precision and could have been formulated in more concrete and enforceable term. 2. Need more transparency in the manner in which the dispute panels and AB works. 3. The worse thing from enforcement perspective=it is still reliant in imp respects on the consent and initiatve of the parties in the dispute. So while party can no longer block the adoption of panel reports,there still possibility of delaying the implementation of panel decision. 4. Absence of availability of redress provisions independent of parties to the dispute. So some reforms are suggested ex. Introduce a right of action by any member in the event of breach,intro a right of action by member in the event of breach,intro a right of retaliatory action by third party,intro the right to transfer retaliatory action to another member, compulsory compensa where involve developing c. Conclusion Understanding give constitutional framework for resolution of dispute in inter trade field.it develops GATT and strengthen system as a whole.creation of inter organization, intro of trade policy review mechanism,institute of judicial review for benefits of private parties in final act agreement all bear inforcement. In 1994 ministorial dcisison said that ds rules should be reviewed by jan 1991.Deadline was extended to july 31 1999 but there was no agreement.Later in doha nov 2001. The problem that the AB has to deal with cases where the original panel has not compelted its analysis due to judicial economy or different legal analysis lead to suggestion that AB should be allowed to remand case back to original panel if factual issue arise at appellate stage which had not been examined by panel. Bilateral agreement DS mechanisms in most bi or regional trade agreements are bease on traditional arbi model. Specificities of wto DS mechanism[excluding appellate phase] are often integrated into working procedures of arbi tribunal to be established under recent agreement. Bila trade agreement including investment provisions provide specific investment DS system[รวม invester-state arbitration] base on traditional model found in most bila investment treaties. TPRM [ The trade policy review mechanism]=permanent institution of wto and responsibility for its admin vests with TPRB[trade policy review body=general council of wto acting under a different framework].obj of tprm = 1.improve adherences by all members to wto rules,discipline and commitments 2.greater transparency, understanding of trade policies, practices of members 3. The enabling of collective appropriation and evaluation of individual trade policies and practices and impact on functioning of muti trade system. Tprm is 3 pronged institutions 1= member accept the need for domestic transparency in their trade policy and practices. domestic transparency links facilitation of and mechanisms for, review and scrutiny of member’s trade policy and practice . ex of dome tran[it is for presnt not obligation]= advance publicity of trade proposal,soliciting of relevant interested group openions , establishment of interdependent non gov institution to review gov trade policis and practices. 2.tprb is to undertake annual overview of inter trade env. This review is to based on annual report prepared by director-general focusing on actitivities of wto+ policy about inter trade. 3.most imp= the establishment of review procedure for regular examine of indi mem’s trade policies and practices ex. Actual tprb TPRM framework Focus and function of tprm is intended to be an examination of trade policies and practices of members.member must submit full country report about its trade policies and practices. Reports are based on agreed format to ensure having imp data and easy to read.during review, must provide brief reports when have significant changes in trade policies and practices.besides this, the wto secretatrist will draw up its own report about trade policy and practice of member with objective to seek clearifiaction from members. Wto report base on 2 questionaires , the basic one and detailed one. Report normally contains 6 chaptes and a summery of observation.6 chapters of wto report are sent to country and under review for correction before circulate.danger is that inter civil servant may get embroiled in the domestic politics of country under this review Every members is subjet to review but frequency of review different. Criteria for review frequency depends on trade impact.therefore using impact criteria,first 4 trading entities have to be review every 2years.case of member with a common external trade policy ex custom union the review is to focus on all aspects of common trade policies and practices, relevant trade policies of members. Duty of tprb = trade policy review on basis of full report suppied by members and report done by secretatist wto. Every review,2 discussants are appointed. Usually they are trade delegates but are supposed to act in their personal capacity. Upon review by tprb complete Key features. 1.TPRM= instrument of enforcement even though the agreement establishing the tprm specifically states that the mechansism Is not intened to serve as a basis for enforcement of specific obligation or for ds procedures soall trade review publish contain preface the statement that the review exercise is not intended to serve as basis for enforcement of wto/gat obligation. Tprm has 2 respects about inforcement 1.it has enforcement charac itself 2. It facilitates enforcement Tprm has enforcement charac for these reasons 1.it is compulsory exercise as member does not have the chice of opting out of the meachanism 2 whole process of review consists of approbation and disapprobation in terms of normative framework comprising of legal and economic criteria.so there is strong suggestion that actor have couched their action within freamework of gatt and wto. 3.while questionnaire sent by wto secretarist in drafgng wto report is confidential, we can assume that it facilitate free and frank questionnaire under review. 4.conformity with wto code of trade policies and practices is a concern of tprm So TPRM can be corrective method as it is an invitation for collective membership of wto to evaluate and appreciate the respective member’s trade policies and practices. end of WTO   Create Date : 04 มิถุนายน 2553     0 comment Last Update : 4 มิถุนายน 2553 5:12:50 น.     Counter : 400 Pageviews.   Share Tweet

2.framework of WTO code Framework of wto code Wto focus 3 areas – goods[gatt 1994] service [gats]trade-related aspects of ip right [trips] The liberalisation of inter trade in goods -General obligations are on 5 imp principles 1.prohibit on quantitative restriction 2.prohition on undermining tariff commitments under taken 3.prohition on acting inconsistently with MFN standard 4.prothition on acting inconsistently with the national treatment NT standard 5.requriement of transaparency 1. quantitative restriction on im and export of productas are prohibited..may be complete or partial If partial is called quota 2.successful trade nego results in reduce of tariff ex Uruguay round achieve 40% tariff reduced..it may came immediately into effect or 10 years later 3.a member may not discriminate as between TO members in rela to like products originating from members/ in rea to like products for different mem c… this prohitibion of discri as between other members is known as mfn treatment.discrimination ex advantage favour privilege immunity,custom duties and charges of any kind imposed on import/export, inter transfer of payments for exp-imp, any rules and formality for im-ex products. The most imp exception to MFN standard is Free trade area,custom unions under art.14 gatt and 5 gats. 4.National treatment standard is broken down into many discrete obligations. 1.internal tax 2.reg and requirement in relat to the internal sale,transport,distribution,use or content of product are not applied to accord protection to domestic production คือเป้นการ protectตลาดภายในโดยใช้ internal tax,internal reg. 3Discrimination under NT is prohibited irrespective of whether it is direct or indi.intention to protect domestic market is disregarded. Word LIKE PRODUCT –determined by its end use in given mkt,consumers’ tastes, habit,product’s properties,nature and quality.similar tariff classification nomenclature 4.art x gatt 1994, there is specific obligation on part of member to publish all trade and trade-related measures..this is transparency measure The obligations in rela to customs and allied procedures Principles = 1. In rela to customs valuation,the rules are in ART 12 about process of estimating the value of imported goods by custom authority, to ensure obj and uniform basis for valuation.ART 13 supports 2. All fees and charges connection are to be levied up to cost of services rendered.Members urged to have customs formalities that simple and reasonable 3. Provision gatt necessitate the determination of the origins of a product eg. Impostion of anti dumping duties and quantitative restriction.Wto has rule of origin too. Anti dumping,countervailing duties-art 11 Imposition of safeguard measure-art 19 Requirement of mark of origin-art 9 Imposition of discri tariff quota Conduct of gov procurement Basic guideline for harmonization rule of origin-art9…หลักดู origin= orgin of a product is to be determined ตาม where the good has been wholly obtained [if more then 1 country involved, the country where the last substantial transformation happens]. Coherent and objective standards are to be set up, should no be trade restrictive disruptive of inter trade,should be admin in consistent,impartial and reasonable fashion. 4.preshipment – to ensure that preshipment requirements do not become obstacles to inter trade,it is necessary to impose obligation both on mem requiring preshipment inspection and exporting member This is stipulated by developing c to compensate their own inadequate custom facility and has aim to prevent fraud. It concern the importing member as follows 1.preshipment activity are to be done in non-discri and objective fashion,must apply to all exporters without discriminate เทียบกับสินค้าdomestic 2.quality and quantity inspection should be in accordance with standard agreed by seller and buyer or inter standards 3.inspection are to be treat as confidential info 4.price have standard 5.avoid delay in inspection 6.hve obligation to prevent import licensing procedure from distorting inter trade. Import licensing arrangement should not unduly distort or be restrictive off inter trade and must be neutral,fair and transparent. 7.goods are allowed to be transported freely through a member country and goods in transit are not subject to custom duties Non tariff barriers- focus 2 areas 1.state trading activities 2. The setting of standards 1.manner of the conduct of entities can be subjected to wto disclipine, where a member maintains a state trading co,but co must not discriminate in ex im.These are reinforced by plurilateral agreement ex gov.procurement. normal rules of origin are to be used. 2.the disciplines in rela to standards are set out in 2 distinct agreements :1. agreement on application of sanitary –phytosanitary measures[sps agreement] 2. Agreement on technical barriers to trade.[tbt] Sps agreement supports art 20 of gatt 1994, under art 20 b of gatt,member country may introduce measures that are necessary to protect human,animal, plant life or health. Sps are defined widely to include all relevant law and requirement that affect inter trade and that protect human animan and plant life,health from external risk ex pest,desease. Sps+art 20 aim argi product.sps is based on scientific principle and not be arbitrary + measure must conform to contain basic norms+ not delay Tbt is about technical regulation and standards, buildจาก Tokyo round, facilitates development of inter standards to promote inter trade and ensure standards not become obstacles. It applies to all products Condition of tbt must follow 1.tech reg and standard must not discriminate between products of national origin and products of foreign origin and between products of foreign origin. 2.the technical reg and standard must not result in unnecessary problems to inter trade 3.the technical reg and standards must be necessary and based on scientific requirements and must be crafted to fulfill inter national security requirement, the prevention of deceptive practices, protection of human health or safety,animal-plant life and env. 4.technical reg and standards should pertain to product performance rather than the design or descriptive charac of products Tbt governs actual procedures involved for assessment of conformity Obligations in rela to unfair trade practice wto does not expressly identify the barriers as unfair trade practices. The wto code focuse on subsidies and dumping,which considered as unfair trade practices in domestic system 1.disciplines in rela to subsidies are in the Agreement on subsidies and countervailing measures [scm agreement] which support art 16 and6 of gatt 1994, and built on Tokyo round of agreement on subsidies and countervailing duties. Subsidies=fi contribution direct/indi by gov-public in territory,occurs when there is direct transfer of fund/when gov rev due is foregone,when goods/service [other than general type] are made available,when adv is conferrd as consequence of any form of income/price support and then result in export increase. Imp is it must result in benefit to recipient. 3 types of subsidies 1.prohibited 2 actionable 3.non actionable[traffic light] 1. Prohibited subsides = subsidies that are contingent upon export performance or subsidies conditional upon use of domestic over imported goods. Normaly WTO member must have obligation to stop payment of subsidies if found in violation of this provision but no obligation to request the beneficiary of unlawful subsidy to reimburse it. 2. Actionable subsidies – have adverse trade effect on the interest of other countries,occur when there is injury to domestic industry of another country,when benefits under gatt 1944 are nullified or impaired and or when there is serious prejudice to the interest of another member.it is not prohibited but gire rist to certin responses at the instance of another member where the subsidy causes or threatens material injury to its established domestic Indus/in the establishment of domestic industry. 3. Non-actionable subsidies are subsidies that are not specific ex.=assistance for reseaceh activities-disadvantaged regions. They are not subject to discipline uder the agreement but they result in serious adves effect to domestic Indus of another member 2.discipline about response to dumping = in art 9 called agreement on ani-dumping[ad],built on Tokyo round,it is price discrimination phenomenon. Normal value is used as based. Response to dumping= initiate for investigation of dumping or subsidies+ determine injury happened Case prohibited subsidies/actionable subsidy-2options 1.countervailing duties 2.dispute settlement procedures seek withdrawal of subsidy/impose appropriate countermeasures.both can be exercised in paralle but as dealing with the effect of subsidy on domestic mkt, only one form of relief is available ex the importing member cant impose counter measures and countervailing duties simu. Case non-actionable subsidy causing adverse effects, no countervailing measures may b imposed. Primary form of response to dumping is anti dumping duty imposed on dumped imported good. Obligation in rela to certain trade-related measure – this type do not strictly or directly part of trade measure ex มันอาจเป็นแค่ measure that nullify/impair the benefits member have right to get under gatt 1944.there is no method to deal with these measure directly. 1.there are trade-related aspects of monetary measures=wto and mem state are obliged to consult and cope with imf 2.wto code focuses on trade-related investment measures ex trims[trims= investment measures that impact on inter trade].IMP is the agreement ensure that trims are not used in such a way to undermine provision of art 3 gatt 1995[ex national standard],art 9 gat 1994 [ie elimination of quantitative restriction] Wto incorporate goal of developments ex trade aspects of economic devopment and make distinction between developing member and least develop but there is no clear distinction but art 18 gat define developing c but imprecise UN definition-criteria for developments 1.develop member are authorized to accord differential and more favorable treatment to developing c without extending that treatment to developed c. 2.developing c are allowed to accord favorable treatment to each other 3.diff lavel of eco development in the undertaking of the disparate wto code obligation is taken into account to facilitate eco develop of developing ex. Exempting developing c from some regulation or counter measures ex subsidies and safeguard measures,according longer time period to implement some wto provision, have certain authorization in wto code to facilitate gov assistance for eco develop. So for member to implement program for development, member may resort protection through imposition of tariff.developing mem may impose quantitative restriction on import for bal of payment purpose Doha development round=round for nego benefit of developing C Emergency measures many measures in code that allow impose of temporary trade restrictions in an emergency 1. Emergency measure are authorized to deal with sudden flow of import of particular type. 2. The disciplines in exercise of these measures known as safeguard measures in gatt,wto = to be found in the agreement on safeguards which supports art.19 gatt 1944 ex a member may apply safeguard measures in form of tariffs or quantitative restriction to product if a member determine that a product is being imported in increased quantities เทียบกับ domestic production and cause injury. So safeguard measure= trade restriction impose for specific product, period in response to imports.SO where a member propose or maintains a safeguard measure it must endeavour to maintain a substantially equivalent level of concessions and other obligations.Generally the measures are to be directed against all imports regardless of source[non-discri manner][parallelism].member are expressly prohibited from entering into voluntary export barrier arrangement,market arrangement,other similar ex-im arrangement. 2.mem states may impose restriction to safeguard their balance of payment where there is big threat or huge decline in country’s moneytary reserves, to facilitate a reasonable rate of increase in country’s reserve when reserve are very low. 3.mem may impose restriction to prevent/relieve huge shortage of foodstuff for essential national security reasons. Exception Wto has exception to its general rules.it is not absolute code but it is adaptable to reflect both charac of inter economic society and national circumstances. To reflect diversity of inter economic community,there are 3 main board categories of exceptions to mfn standard. 1.there is exception relating to preferential arrangement that existed mainly for historical reasons ex. Former colony or between neihbooring countries. 2.there are preferencial arrangement for beneifits of developing c ..maybe bila basis b/w developed and developing c or unila given by developed c or preferential arrangement b/w developing c. 3.there is the excpetion relating to custom unions,free trade area and allied arrangement. Custom union = basically an arrangement where trade restriction are eliminated,where the external trade restriction of union members to non-members are substantially the same. Free trade arrangement is arrangement where substantially trade restrictions on trade b/w members are eliminates but member still keep control of their external trade regime for non member.this is process of economic integraton and must not result in higher external trade barriers for non-mem.this is something escape GATT MFN standard but unless it is specifically exempted,other wto discipline still in used. Art20 =general exception, art 21=security exceptions 1.member may apply certain restrictions to protect its internal value system so a mem may impose restriction necessary to protect its public morals,impose restriction for protection of its national treasures of artistic,historic,arche value,use measure to ensure compliance with some national regulations that not inconsistent with gatt 1994 2. a mem may impose some restrictions to preserve and protect its tangible and intan wealth and its eco system ex to conserve exhaustible natural resources,to protect human,animal and plant life helath,ip right,flow of gold and silver, to ensure marketing in inter trade.but there is some condition to prevent abuse of this exception. So restrtiction or measure must not be unjustifiably discri and should not constitute disguised restrictions on inter trade or arbitrary.these general condition are in art 20.ประเด็นคือ whether a measure is necessary as it s prerequistite under art 20 3.in some situation, a member may impose import restriction on argi/fish product to reinforce gov. measure to control domestic product Special regime for certain special sectors. 2 sectors get special privilege =agreement on argri and agreement on textile n clothing since Uruguay round.basically agreement on agri give free market orignetation.goal to secure the dismantling of barriers to trade in the field of agri.reduction of support to domestic producers, set up fair competition.but there are 2 limitations 1.regulatory framework applied to agri products specified in annex1 of agreement 2.it bind membe only to extent of its commitment specified in part 4 Conclusion- basic obligation under agreement = 1.member is commited not to provide a domestic producter support in excess of that specified in its schedule 2 member is commited not to provide export subsidies in excess of that specified in its schedule and in comformity of agreement. 3 member is required to convert into ordinary customs duties certain quantitiative restriction,variable import levies,min import prices,discretionary import licesing,non tariff measures maintained through state trading corp, volunatary export and similar measures. 4,a member is bound by tariff concession and other mkt access commitment specified in its schedules. Different from agri sector,textile sector was operating under special inter regime till end of Uruguay round.obj of agreement on texile and clothin[atc]=to integreate rela of inter trade into general wto framework.the expire of 10 years ATC means that trade in textile and cloth is no longer subject to quota under special regime outside wto gatt but under general rules of multi trading system. The liberalization of inter trade in services. GATS provide liberalization of trade in services –2 clearly show 1.general obligation and discipline 2.specific commitments General obligation cover all measures affecting trade in services and all service types.Specific commitments are confined to particular service sector.the agreement applies to measure affecting trade in services[ is the supply of service to any sector] ex cross border supply,consumption abroad eg tourism,commercial presense eg through subsidiary or branch and movement of persons. General obligation 1.mfn is prescribed in rela to measure link with trade in services.so each member is to grant unconditionally to services and service supplier with the same treatment but this is subject to certain exception ex. Mfn standard does not preclude members from entering into eco arrangement which trade in services are liberalise amongt members,to enter labour mkt integration agreements. 2.there must be full transparency in these measure. 3.the council for trade in service is to ensure by design appropriate discipline that requirement do not set up unnecessary barriers. 4.members are to ensure that monopoly suppliers of service in their territory do not act in manner that in consistent with mfn standard,specific commitment given by members. These following obligations use where a member has given specific commitment in rela to measure affect trade in services 1.each member is required not to accord treatment to other members that is less favorable than that provide under the term condition specified in member’s schedule or treatment that is less+ than that accorded to its own like service and service suppliers ex national treatment 2.unless specified in member’s schedule, member is not to impose limit on number of service suppliers or total value of service transaction or no of natural persons who may employed in particular service sector 3.where a mem state has given specific commitment in particular sector of services than domestic measures are to be admined in objective and reasonable manner, where an application is required to facitate supply of service,then applicaton must be proceed without delay Some restriction on supply of services can be imposed in specified circumstances 1. Restriction to correct a member’s bal of payments equilibrium are permited , imp is it must non-discriminte,transparent,temporary 2. Mfn stipulation mkt access commitments and national standard do not apply to gov procurement of services 3. There are certain restrictions that may be placed by a member to protect public moral,human animal plant life, to prevent fraud and ensure privacy and national security.a member can impose restriction aht undermine national treatment standard to ensure effective and equitable collection of direct taxes about services and may use measure inconsistent with mfn as result of join agreement of avoidance of double taxation. Trade-related aspects of ip right[trips] trips focuse on protection of ip rights and inter trade. Dispite having wipo but wto code still have ip right code coz wto offer more effective implementation process.3 objectives of wipo 1.to reduce distortion and impediments to inter trade caused by nature of national ip protection by establish min of protection of ip rights in mem states 2.entend to ensure that ip protection does not distort/impede inter trade. 3.protection of ip right should contribute to promotion of it innovation and help in transfer and disseminate techno.k Ip protection covers 1.cr and related right 2.tm 3.gi 4.indus design 5.patent 6.protection of undisclosed info. 7.agreement regulates anti-competitive practice in contractual licenses. Imp 1.must have certain provision in national legislation 2.each mem is accord to nationals of members treatment no less favorable 3.each member is to accord to mfn treatment unconditionally to nationals of all other members.4. the agreement also set framework for enforcement of ip right which member are to introduce in their domestic system. Challenge ahead 1. Techno changes ex e commerce 2. Tension arose from implement of specific areas ex adjustment to trips ex access to medicine, adjustment to new textile regime[china enter wto] 3. New areas [investment completion]=difficult to be continued..   Create Date : 04 มิถุนายน 2553     0 comment Last Update : 4 มิถุนายน 2553 5:12:19 น.     Counter : 260 Pageviews.   Share Tweet

1.International Trade and WTO --Objectives,structure,dispute settlement ps. This is my own main conclusions not in correct grammar. International Trade Law and The Wto Inter trade law play imp role in shaping of inter trade relation between state. Need for greater inter trade, and advent of globalization call for a supranational regime ensuring co-op, order and harmonization.WTO give basic constitutional frame work, facilitating the development of inter trade law, provides executive legislative and enforcement apparatus for a code of conduct regulating inter trade policies and practices but WTO regime does not cover all aspects of inter trade. Some of the sphere not covered are governed by other multi or bi regimes, including solf-law codes of conduct. Others institution play roles in development of inter trade are UNCTAD,WIPO AND ILO. Despite their preferential character [contradict to mfn]principle of the trade agreement under wto and very spirit of multi trading system, there are exceptionally acceptable under art 13 GATT[about trade in goods] and Art 5 GATS[about services] Inter trade problems Stages engages in foreign trade policy by the use of national trade policy statements. 1.impose quantitative restrictions – limits amount or value of a product 2.impose tariffs – duty, a form of indirect tax paid on a product upon its import 3,voluntary export restraint [ver] with a supplying state or with suppliers.โดยการใช้ export licenses 4.impose intentionally or non-tariff barriers[ potentionally open-ended and can take many forms]เช่นใช้ subsidy to particular Industry and it distort trade flows. Impose admin measures at the border ex. Custom valuations, rules of origin. Boarder measures involve unnecessary delays or payment of bribery and so reduce trade flows. Impose disguised restrictions ex unnecessary technical standards[technical barriers to trade, TBT] Impose sanitary or phytosanitary measures[sps measures] 5.states abuse legitimate response ex trade remedies to trade from other states ex.use anti-dumping duties when product is very cheaply exported, use countervailing duty when a good is considered to have unduly subsidized by the exporting gov. 6.state impose discriminatory regulations and taxes when goods and services are inside territory. 7.state engages in discri enforcement of domestic policies ex Indus policy[help particular Indus],ip right, competition policy. Subsidy=less costly than tariff, quota and vers. Tariffs quotas and vers affect both capacy of Indus and price of goods but subsidies only affect capacity of the Indus. Tariffs affect domestic price of import do not decouple rela of domestic price with inter prices[this is effect of quota]คือถ้ามีdecouple relaแบบนี้ consumer suffer higher domestic price. โควต้า imposed by admin measures.tariff by legislated.VER=least economically sound.สรุป greater more obvious trade distortion[ผลจาก instrument],the more trade barriers.so rank from worse=quanti restriction,tariffs,discri,non-tariff barriers[state trading,custom procedures],unfair trade practices ex subsidie,trade-related aspects of other measures eg ip right protection,investment protection. CA theory predicts that barriers to trade and discri in trade,esp in long run do not contribute positively to eco welfare of national and inter economy.where here is specialization and trade then there will be overall increase world production of products.this will benefits the consumer[in choice and price and provides competitive to local corp. So ca = efficient allocation of world resources and increase choices to consumers Political trade theory =maximize individual liberty[to im-exp products] and choices WTO coordinates work with WIPO,IMF,offer more legislative and enforcement mechanisms. This shows by prolific use of wto dispute settlement mechanism and trade liberalization.wto take care wto agreement and other uruguay round agreement purpose and objective primary= ensure reduction of tariffs and other barriers to trades,eliminate discriminatory treatment in inter trade rela—to facilitate higher standards of living,full employment,growing volumn of real income and effective demand and expansion of production and trade. 3 main qualifications 1.national ob must be pursued in a manner that is consistent with optimal use of world resources = support CA theory 2.need for sustainable development, protect, preserve envi—this should be on multilateral rather than unila basis 3.need for eco development for developing c. = inter trade system must fairly allow members to share the growth of inter trade according to their contribution to it but complex of wto make it difficult for developing c to participate fully Functions of wto 1.give substantive code of conduct directed at the reduction of tariffs and barriers and eliminate discri in inter trade rela. 2.give institutional framework for the admin of substantive code,give integrated structure for admin of trade agreement,include agreement under Uruguay round of Multi Trade NEGO 3.ensure implement of substantive code, give forum for dispute settlement in inter trade matters and conducts of national trade policies and practices to prevent disputes and contribute to increased transparency and efficiency. 4.wto acts as a medium for the conduct of inter trade rela amongst mem states.both bila and multi,act as forum for nego of trade liberalization and improvement in the inter trade system 5.engage in acheievement of greater coherence in global economic policy-making by co-op with imf and world bank group and other institution WTO decision making No weighted voting at wto [IMF,world bankมี},all mem have equal votes and voting power is not depends on contribution to inter trade.so decision process is democratic. 1.decision making by consensus[one vote one member system] can be as potent as a formal system of weighted voting. This is coz the mood of forum will be influenced implicitly by the weight of openions proffered by economically more dominate member. Decision arrive at consensus if no member present at the meeting formally objects to the proposed decision. Consensus decision-making can facilitate maximum participation in decision-making so allow a greater say to developing member by coaliations. If decision cannot be arrived by consensus,then decision making take place by voting.at minis conference and general council,each mem state has one vote.at ec, ec have num. of votes= its mem states, although it is a distinctive member itself, it does not have extra vote imp points WTO decision making 1.de-making by consensus can be a potent as a formal sys of weighted voting. 2.consensus decision making needs a higher degree of consensus amongst the membership –so it is slower mechanisim to bring change. 3.voting can be by a show of hands so the decision making can have same affect as weighted voting system…by one mem one vote, decision making can have the same effect as a weighted voting system. 4.factors influence in deci-making =rela of mem’s contribution towards expenses of wto and influence of decision making[คือ not intended formally to have effect on d-making but it still have significance เช่น wto secretarist and wto staff in key position….ex process involve appointment of appellate body judges involve national nominees on grouds of the share of world trade of state. Conclusion 1. WTO give basic constitutional framework for inter trade system. the system gives legis machinery in the field of inter trade for dispute settlement and admin structure. 2. Status of wto in context of wider inter economic order is acknowledged so wto is to co-op with IMF and WORLD BANK GROUP to facilitate greater coherence in global eco policy-making but inter apparatus for greater coherence has not been able to deal with conflict effectively ex recent wto panel and appellate body report about argentina’s contention เกียวกับ violation of art 13 gatt1944 คือ commitment of argen in rela to imf were not clear and proven and wto did not make provision for substantive rules for resolution of conflicts between obligations. 3. Stress points 1. Purpose and obj of wto are limited in scope 2. Wto does not appear to have any effective mechanism to ensure that development of inter trade regu in future will be responsive to the needs of inter trading system but just as inter lobbyists 3. It is contended that the wto has a fairly rudimentary inter personality4. The creation of wto has not been nego but emerge from GATT 5.in technical prospective, substantive law under framework of wto has not been codified but inter trad system sill comprise of mosaic of many different inter agreement so wto creates complexity and give rise to conflicts or inconsistence between agreements. 4. In 2001 doha round refers to as a development round in view of continued lack of integration of developing countries into world trading system. Particular emphasis is on mkt access for developing c. esp in argiculture area. 5. 2003 cancun conference = not success and conferenceต่อมา HK2005 limit nego to many key issue. As lack of consensus about kind of tariffs cuts esp in argi sector +Indus good,market opeining [service],nego were suspened tobe july 2006 and 2007 to be continued...   Create Date : 04 มิถุนายน 2553     1 comment Last Update : 4 มิถุนายน 2553 5:34:24 น.     Counter : 545 Pageviews.   Share Tweet