The Study of the General Exceptions and Case Study
Added on 2020-10-04
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Data Science and Big DataLanguages and CulturePhilosophyEnvironmental ScienceEconomicsPolitical Science
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The Effects of the Contradictory Lawsand Policies of WTO members towardWTO Principle: The Study of theGeneral Exceptions and Case StudyArticle XX under GATT/WTO Referredfor Environmental Protection !!!
Table of ContentsCHAPTER 1: INTRODUCTION....................................................................................................11.1 Background and operational approach of WTO...................................................................11.2 Dispute Settlement Procedure...............................................................................................21.3 Principles of non-Discrimination..........................................................................................41.4 Exceptions Provisions...........................................................................................................6.........................................................................................................................................................7CHAPTER 2: LITERATURE REVIEW.........................................................................................82.1Introduction............................................................................................................................82.2 Laws and Policies of World Trade Organization..................................................................82.3 Laws and policies of WTO members in aspect of protection of environment....................112.4 Evaluation of effect of Contradictory Laws and Policies of WTO members on WTOPrinciples...................................................................................................................................132.5 Assessment of Article XX in terms of environmental protection.......................................14CHAPTER 3: RESERACH METHODOLOGY...........................................................................163.1 Introduction.........................................................................................................................163.2 Research Philosophy and Approaches................................................................................163.3 Research Design..................................................................................................................173.4 Research Approach.............................................................................................................183.5 Research type......................................................................................................................183.6 Method of research..............................................................................................................183.7 Data collection....................................................................................................................193.8 Sampling techniques...........................................................................................................203.9 Data analysis.......................................................................................................................203.10 Validity and Reliability.....................................................................................................203.11 Limitations of Research....................................................................................................213.12 Ethical Considerations......................................................................................................21CHAPTER 4: APPLICABILITY OF ARTICLE XX OF GATT 1994.........................................22CHAPTER: 5 SIGNIFICANT CASE............................................................................................25Shrimp and Turtle case..............................................................................................................25
Tuna-Dolphin I – II Case .........................................................................................................27CHAPTER 6: THE COMPLICATION OF ADAPTATION AND INTERPRETATION OFARTICLE XX................................................................................................................................29CHAPTER 7: THE NECESSARY AMENDMENT TO ARTICLE XXSTANDARD..................................................................................................................................33CONCLUSION..............................................................................................................................35REFERENCES..............................................................................................................................37.......................................................................................................................................................40
CHAPTER 1: INTRODUCTION1.1 Background and operational approach of WTOOverview:In modern era, the main focus of countries is on protection of environment. In this light,World Trade Organization is a regulatory body which is established with a perspective toregulation of trade conducted in between different countries of globe. It came into force onJanuary 01st, 1995 under Marrakesh Agreement, which was signed by 123 nations 1. Basically, itwas framed with a main objective to replace General Agreement on Tariffs and Trade. It is considered as a largest International organization in economy across the world. Itfunctions in following arenas:It deals with regulation and direction of international trade in between its membercountries. It means that its main aim is to make sure that member countries are effectivelyand efficiently conducting their operations of trade and practices across worldwide.It also renders a complete regulatory framework, with a main objective to negotiate tradeagreements 2.In addition to this, a dispute resolution procedure is established by world tradeorganization in order to resolve disputes and conflicts that can occur in between theirmember countries while trade. Moreover, World trade organization focuses on to resolvedisputes and other conflicts.Also, it attempts to fulfil all negotiations on Doha Development Round, which came intoforce in 2001. 1Altbach P. Higher education and the WTO: Globalization run amok. InternationalHigher Education. 2015 Mar 25(23)2Howse R. Importing” regulatory standards and principles into WTO dispute settlement: thechallenge of interpreting the GATS agreements on financial services andtelecommunications. Regulating trade in services in the EU and the WTO. CambridgeUniversity Press, Cambridge. 2012:445-69.1
The main operational approach of World Trade Organization, lies within an area that itwas recognised as a successor to GATT 3. On one hand, GATT only focused on toconduct a trade in between trade in goods, while, on the other hand, World TradeOrganization mainly occupies in all aspects which can be classified as trades, services,intellectual property and investments. In the end, World Trade Organization emphasises on trade with no discrimination,enabling market growth with predictable conditions, to effectively promote faircompetition and enhancing and encouraging development, etc. Aim: To identify the effects of contradictory laws and policies of members of WTO, towardsWTO principles.Objectives: This dissertation has been interpreted with following objectives:To determine laws and policies of WTO.To identify laws and regulations of WTO members.To evaluate an effect of Contradictory Laws and Policies of WTO members toward WTOPrinciples.To have an assessment of Article XX, in terms of environmental protection. Research Questions:1.What are the distinctive laws and policies of world trade organization?2.What are different laws and regulations related to WTO members?3.In what manner contradictory laws and policies of WTO members effect principles ofWTO?4.What does Article XX comprise of?1.2 Dispute Settlement ProcedureDispute resolution procedure implies a process within which World Trade Organizationmainly focuses on to resolve or dismiss all the disputes and conflicts, that have arisen or mightarise in near future, among their member countries while conducting trade of goods and services4. In addition to this, it can also be held that, in the year of 1994, all members of World TradeOrganization have marked their confirmation in terms of procedures and rules which governed3Blumberg BF, Cooper DR, Schindler PS. Business research methods. McGraw-hilleducation; 2014.4Chang PL, Lee MJ. The WTO trade effect. Journal of International Economics. 2011 Sep30;85(1):53-712
the settlement of disputes and dispute settlement understanding. It is a notable fact that there arevarious aspects, which gives rise to dispute. Disputes can arise under non violation nullificationof benefits claims. The main priority of WTO is on the effective management and disputeresolution among members. In context of WTO, dispute resolution procedure can be elaboratedas follows:Consultations: First of all, if in accordance with an opinion of a members’ state thatmethod of trade that has been adopted by another country was not fair and it deprivedbenefit from that said method then, it can ask another country, for a purpose ofconsultations 5. In addition to this, outcomes of consultations should be analysed within60 days. Establishment of a panel: In case of a failure in aspect of attainment of disputeresolution by consultants within a period of “60 days”, then plaintiff state can ask forinstitution of a panel. In addition to this, respondent state is not provided with anauthority to prevent or restrict any establishment of panel, until and unless as provided byDSB by consensus. It should be established within “45 days” from the date of failure ofconsultations. Report of Panel: In next step of dispute resolution procedure, panel assess and report isprepared on the basis of facts 6. If Panel approves the bill or case of claimant, thenclaimant wins and case will be dismissed, on the other hand, if bill is not in favour, thendefendant wins and case has been transferred for appellate review7. It should becompleted within a time period of 6 months. Final report to parties: In this step, the parties are provided with a final report andjudgment to both the parties and WTO members within the time period of 3 weeks. After2 weeks, it is transmitted to all members of WTO. Adoption of report: In case, where there is no appeal established, within a time period,then, report will be adopted by Dispute Settlement Body.5Cottier T, Malumfashi G, Matteotti-Berkutova S, Nartova O, De Sepibus J, Bigdeli SZ.Energy in WTO law and policy. At; 2011.6 Maggi G, Staiger RW. The role of dispute settlement procedures in international tradeagreements. The Quarterly Journal of Economics. 2011 Feb 1;126(1):475-515.7Davis CL. Why adjudicate?: enforcing trade rules in the WTO. Princeton UniversityPress; 2012 May 273
In addition to this, dispute settlement understanding of World Trade Organization aims toaddress the subject of retaliation and compliance. In addition to this, it can be held thatduring the period of thirty days of report adoption, the concerned members state of WTO isrequired to inform the DSB and state their intentions in regard to application ofrecommendations and rulings as well. 1.3 Principles of non-DiscriminationIt is a notable fact that World Trade Organization has incorporated various new norms,disciplines and principles which lies within trade of goods and services among its membercountries. In addition to this, it can also be noted that all agreements and contracts of WorldTrade Organization are lengthy and complex in nature, which is due to reason that it consists ofmany legal texts and also covered wide range of activities. Considering this, there are different principles framed by WTO, which can becharacterised as Principle of Non-discrimination. It is considered as a basic and mostfundamental provision of WTO, which act as a preamble of WTO agreement, through whichobjectives can be attained by its member’s countries. In addition to this, the Principle of Non Discrimination has been personified with two subtypes, which can be classified into Most Favoured Nation Treatment and other is Nationaltreatment.Most Favoured Nation Treatment:Members of WTO are recognised as a members of a club. So, in this light, it is a basicduty of a member, to render best possible outcome or grant, to another member, which will beconsidered as a best possible outcome. Hence, each member is entitled to receive best possibleresults and grant from its companions. Also, in WTO agreements countries and member states ofthe country are not liable to discriminate among their member countries. Moreover, for thepurpose of Trade in Goods and services, MFN Principle ask each and every member of WTO, toextend their area of services, in terms of treatment, which is not less than favourable, incomparison to favour accorded to any other country 8. In addition to this, it can be assessed that effective and key components of MFN principlecan be:8Eicher TS, Henn C. In search of WTO trade effects: Preferential trade agreements promotetrade strongly, but unevenly. Journal of International Economics. 2011 Mar 31;83(2):137-53.4
Any kind of privilege or advantage that has been covered in Article 1.1 of GATT articles.It basically covers duties of customs, all sorts of charges which has been imposed onimport and export of goods and services and also all duties imposed on internationaltransmission of payments for exports and imports. Like or similar goods.The direct and unconditional grant of benefit at the time of issue of similar goods issued.Furthermore, in accordance with the provisions of MFN principle, it imposes variousrestrictions on Vanin’s Customs authorities, for prohibit it to levy a custom duty of 10%. Also, itfocuses on to grant WTO favourable treatment at the rate of 5 % to watches which are imported. While, in this direction, it can also be assessed that some exceptions are made allowed,which can be regarded as, for an instance, that countries can establish their own free –tradeagreement, which is only applicable to goods and services being traded and commercialisedwithin the same group area. In the end, most favoured Nation Principle is a principle which involves an implicationthat as and when, any member opens up or lower a trade barrier, it is authorised to perform thesame for similar services and goods from all its trading partners, irrespective of poor, weak orstrong. National Treatment:It is another principle under the provisions of World Trade organization, which signifiesits role in effective conduct of trade of goods and services. it is a principle which means thatthere should be an equality among imported goods and goods and products which aremanufactured domestically 9. In other words, each members of a state are liable to treat orconsider all imports of goods and services, in a favourable manner like domestic material andproducts. This provision is being described under Article III of GATT, 1994. This principlemainly focuses on to the fact that all imported and domestically manufactured goods and servicesare liable to be treated in an equitable manner. Furthermore, the provision of national treatmentis found in all three major agreements of World Trade Organization. 9Erokhin V, Ivolga A. How to ensure sustainable development of agribusiness in theconditions of trade integration: Russian approach. International Journal of SustainableEconomies Management (IJSEM). 2012 Apr 1;1(2):12-23.5
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