Critical Analysis of World Trade Organization Decisions

This assignment critically analyzes the existing decisions of the World Trade Organization (WTO) and the Appellate Body to expand the policy space for WTO members to pursue industrial policies under WTO law. It discusses how such policy space could be expanded more through the decisions made by WTO panel and Appellate Body.

Running head: WORLD TRADE LAW
WORLD TRADE LAW
Name of the Student:
Name of the University:
Author Note:

1
WORLD TRADE LAW
In the present assignment, a critical analysis of the existing decisions of the World Trade
Organization1 or WTO and the Appellate Body to expand the policy space for the WTO which
means World Trade Organization members to pursue industrial policies under the WTO which
means World Trade Organization law is done. It also discussed how such policy space could be
expanded more through the decisions made by WTO which means World Trade Organization,
panel and Appellate Body.
WTO the full form of which is “World Trade Organization” is an “intergovernmental
organization”. International Trade is regulated by this organization.WTO which means “World
Trade Organization” officially started its journey from 1stJanuary in the year 1995 by
the “Marrakesh Agreement”2. This “Marrakesh Agreement” was signed by one hundred and
twenty three nations on 15 April in the year 1994.WTO which means World Trade Organization
replaced GATT which means “General Agreement on Tariffs and Trade”. GATT which means
“General Agreement on Tariffs and Trade” started its journey in the year1948.3WTO which
means “World Trade Organization” regulates international trade between its member nations.
International Trade is regulated by the way of providing the specific framework which negotiates
international trade. It also regulates process for the resolution of dispute. It aims to enforce its
member nations to abide by WTO which means “World Trade Organization” rules. It is then
1World Trade Organization.
2“Marrakesh Agreement”
3 Hoda, Anwarul. Tariff Negotiations and Renegotiations under the GATT and the WTO: Procedures and Practices.
Cambridge University Press, 2018.

2
WORLD TRADE LAW
signed by the governmental representatives of the member nations. Next it needs to be ratified by
the parliaments of those member nations. WTO which means “World Trade Organization”
focuses upon the issues which are derived from any trade negotiations which had occurred in the
past especially on the basis of the Uruguay Round4 between the year1986 to the year 1994.
The predecessor of World Trade Organization is GATT which means the “General
Agreement on Tariffs and Trade”. GATT which means the “General Agreement on Tariffs and
Trade” was established by the end of the Second World War during the starting of many other
new “multilateral institutions”. The GATT which means the “General Agreement on Tariffs and
Trade” was the one and only “multilateral instrument” which was governing the international
trade since the year 1946 until WTO or World Trade Organization which came into being on 1
January in the year 1995. In spite of making attempts during the middle of the year 1950s to
1960s for creating an institution for institutional the international trade, the GATT which means
the “General Agreement on Tariffs and Trade” continued its work for nearly half of the century
as the “semi-institutionalized multilateral treaty”. It used to work on provisional basis. During
the end of the Second World War international institution for trade came into being. WTO which
means “World Trade Organization” can be compared to that organization. The name of that
organization is the “International Trade Organization” successfully originated. The ITO which
means “International Trade Organization” was not been approved by the United States along
with some of the other member nations which signed the agreement, and therefore it never came
into effect.At present WTO which means “World Trade Organisation” rules are being codified
into three agreements. They are “The General Agreement on Tariffs and Trade” which is
commonly known as GATT, which covers the international trade of goods. The second one is
4Uruguay Round

3
WORLD TRADE LAW
“The General Agreement on Trade in Services” which is commonly known as GATS. The third
one is an Agreement which is related to “Trade-Related Aspects of Intellectual Property Rights”
or TRIPS. GATS which means “The General Agreement on Trade in Services”5and TRIPS6
which means “Trade-Related Aspects of Intellectual Property Rights”7 both came being in the
year1995.
The main goal of the agreements stated above are to make an environment where trade is
free. Most important rules of WTO which means “World Trade Organisation” are hereby stated.
Firstly, to rein with regards to anti-import tariffs.
Secondly, to make customs procedures less complex thereby making trade an easy task
Thirdly, to discourage the use of domestic laws along with taxes which can be
categorised as protection.
Fourthly, to reduce the charges relating to quotas as well as subsidies.
The assignment firstly presents the general ideas on how the WTO which means “World
Trade Organisation” dispute settlement can affect the policy space available to WTO which
means “World Trade Organisation” members to adopt measures related to industrial policy.
Secondly, two cases where the Appellate Body interpreted certain WTO which means “World
5“The General Agreement on Trade in Services”
6 Zhuang, Wei. Intellectual property rights and climate change: interpreting the TRIPS Agreement for
environmentally sound technologies. Cambridge University Press, 2017.
7TRIPS or “Trade-Related Aspects of Intellectual Property Rights”

4
WORLD TRADE LAW
Trade Organisation” provisions in a way that forms more policy space for industrial measures
than alternative interpretative way outs would have been allowed have been discussed.
In the following part of the assignment, other examples of how WTO which means
“World Trade Organisation” dispute settlement decisions could form or enlarge the policy space
under the WTO which means “World Trade Organisation” legal provisions in relation to
industrial policy measures have been elaborated.
The Agreement on “Technical Barriers to Trade”,8commonly referred to as the TBT
Agreement. It is an international treaty which is administered by the “World Trade
Organization”. The Agreement on “Technical Barriers to Trade” or TBT renegotiated last during
Uruguay Round of the “General Agreement on Tariffs and Trade” which is commonly known as
GATT.9 Its amended form came into force by the establishment of the WTO or World Trade
Organization in the starting of the year 1995. This binds all the member nations of WTO or
World Trade Organization10.
Article 2.1 of the TBT which also means Agreement on “Technical Barriers to Trade”
agreement held that members must ensure that in relation to technical regulations, products that
8
9 Knight, Jane. "Trade creep: Implications of GATS for higher education policy." International Higher Education 28
(2015).
10 Molina, Ana Cristina, and Vira Khoroshavina. "Technical Barriers to Trade Provisions in Regional Trade
Agreements: To What Extent Do They Go beyond the WTO TBT Agreement." Technical Barriers to Trade
Provisions in Regional Trade Agreements: To What Extent Do They Go beyond the WTO TBT Agreement (2016):
371-420.

5
WORLD TRADE LAW
are imported from the territory of any Member State must be given the same and less favorable
treatment as given to the similar products of national origin and to the similar products originated
from any other country. According to Article 2.2 of TBT or Agreement on “Technical Barriers to
Trade”11members must ensure that technical rules and regulations must not be prepared, adopted
and applied in such a way that will create unnecessary hindrances in the international trade. Such
rules and regulations shall not be more trade- restricted than required to create a legitimate aim
after taking into account the risks that could be created for not fulfilling the criterions. Those
aims are needed for national security, prevention of human health and safety, plant or animal life
or health or for the environment protection. While analyzing such risks, available technical and
scientific facts, technology related processing or end uses of products are to be considered.
According to Article XX, of TBT or Agreement on “Technical Barriers to Trade”12 list of
general exceptions are provided. It says that the TBT or Agreement on “Technical Barriers to
Trade” agreement shall not be construed strictly when there lies situation where it is required to
take measures necessary to protect public morals, human, animal or plant life or health, measures
related to importations or exportations of gold or silver, or necessary to comply with laws or
regulations, products of prison labour and others. Hence for the above mentioned situations,
deviations from the actual rules and regulations are permitted.
It must be stated that the members must have to hold some alternative measures which is
less trade restrictive one. Settling a dispute is a significant part of the multilateral trading system.
WTOor “World Trade Organisation” uniquely contributes to the economy of the world. If the
process of settling disputes was not there then the system which is based on rules would have
11Article 2.2 of TBT or Agreement on “Technical Barriers to Trade”
12Article XX, of TBT or Agreement on “Technical Barriers to Trade”

6
WORLD TRADE LAW
become less effective, this is because rules cannot be enforced in the international courts of law.
The procedure of WTOor “World Trade Organisation”makes the trading system more
predictable and a secure one throughout the world. This system is only based on the rules. Rules
are made by the panel and are endorsed or in certain cases it can be rejected by the WTOor
“World Trade Organisation”. Appeals based on points of law are possible.
The members of WTO or “World Trade Organisation” have mutually agreed that if the
fellow members of WTO or “World Trade Organisation” violates trade rules, then those
members will have to use the “multilateral system” for the settlement of disputes and will not
take actions unilaterally. This also means to abide by the procedures which are been agreed by
the fellow members of WTO or “World Trade Organisation”along with respecting the
judgments. Disputes which occur in WTOor “World Trade Organisation” are usually on the basis
of the promises which are been broken by its member nations.
Disputes can also arise if one of the member nations adopts any trade policy. It can also
happen if some actions are taken which any one or many fellow member nations of WTO or
“World Trade Organisation”considers that they are breaking WTOor “World Trade
Organisation” agreements. It can also happen because of not being able to abide by the
obligations.
The procedure to settle disputes was already present in the previous GATT or “The
General Agreement on Tariffs and Trade” but there were no particular timings. Rulings were
easy to delay and therefore the cases were dragged on for many years. Uruguay Round made a
more specific process defining the stages of the procedure with more clarity. Greater discipline
was introduced regarding the length of time between which a case must be settled. But flexible

7
WORLD TRADE LAW
deadlines were also set in different stages of the stated procedure. The above stated agreement
puts emphasis on the quick settlement of the issues of dispute. This must also be an essential if
WTO or “World Trade Organisation”functions effectively. This also sets specific details with
regards to the procedures and also with regards to the timetable which must be followed while
resolving the disputes. Suppose if a particular case takes place in the full course with regards to a
first ruling, then it must not take anytime more than one year or fifteen months in respect of a
case which is appealed. The time limits specified above are flexible. But if a particular case is an
urgent one then it must be accelerated as early as it can be.
Switzerland complained against United States regarding Aluminum and Steel products.
(DS556).13 GATT Articles I:1, II:1(a), II:1(b), X:3(a), XI:1, XIX, XIX:1, XIX:2 comes in
relation to this case. The panel for the settlement of disputes was composed on 29th January,
2019.
Uruguay Round has made it tough in respect of a country which is losing a case to delay
the proceedings. According to the old GATT or “General Agreement on Tariffs and Trade”
procedure, rules may only be adopted on the basis of own will. This means that only one
objection could lead to hindrance of the ruling. These days rulings can be automatically adopted.
But there must be a valid reason for the willful rejection of a ruling. If a particular country wants
to hinder a particular ruling. Then that country must persuade to all the member nations of WTO
or “World Trade Organisation”. That country must express its point of view in this regard.
Though much of these procedures resemble the proceedings of a tribunal or a court. But
one of the easiest and most preferred solutions is that the countries in question must discuss their
problems among themselves. The countries in question also must try to settle any dispute on their
13 Switzerland complained against United States regarding Aluminum and Steel products.(DS556).

8
WORLD TRADE LAW
own. In this way a lot of time will be saved. For settling any dispute the first stage involves
consultation among the governments of the countries in question. Even if the case in concerned
has proceeded to the later stages then even the ways of mediation and consultation are still
possible.
Settlement of Disputes: If any dispute arises between the members with regards to the
operation related to Agreement on reshipment Inspection14 then this will be according to
Article XXIII of GATT which means “General Agreement on Tariffs and Trade” on the
year 1994. This is explained and thereby applied according to the “Dispute Settlement
Understanding”. This is stated in Article 8. Till date more than five hundred disputes have been
solved. These disputes where among the member nations of WTO which means “World Trade
Organization”. These disputes among the member nations of WTO which means “World Trade
Organization” were mostly related in respect to the making of new policies of WTO which also
means “World Trade Organization”
If any one of the member Nation feels that any particular measure which is adopted by
WTO is depriving it from any particular benefit. Then that particular Nation can consult it with
other member Nations. Even after consultation if the dispute is not settled within sixty days then
the particular member Nation can request for establishing a Panel. Panel usually consists of three
members who are appointed by the Secretariat. The proceedings which takes place are usually
confidential. The final report of the panel is distributed to the parties of the dispute within two
week. Later the final report of the panel is circulated to every member Nations of WTO.
The member Nations of WTO can state their views regarding the final report of the Panel to the
Appellate Body. But member Nations of WTO cannot derail it.
14 Agreement on Reshipment Inspection

9
WORLD TRADE LAW
The member nations of WTO which means “World Trade Organization” have the
opportunity to argue with respect to any policy. If new policies are made the member nations of
WTO which means “World Trade Organization” has to obey it. But they are not bound to obey it
and they can argue regarding implementation of any policy which violates the laws of their
nations. The member nations of WTO which means “World Trade Organization” can also argue
regarding the implementation of any policy if it hinders the benefits of their nation. But in this
regard it must be stated proper evidences must be produced with respect to their claims
otherwise, their claims will not hold any value and that particular policy will be then
implemented, if it is accepted by other member nations. In this case the member nations will be
bound to obey the policy. Therefore, the opportunities given to them must be utilized by them to
the fullest. In some cases where the member nations argues regarding the implementation of
certain policies and also provides evidence in support to it and all the other member nations
support it then such policy will not be implemented. Therefore, here it is the power of the
member nations to decide whether a particular policy will be implemented or not. Once, Canada
claimed of discrimination against United States by Article III:4 GATT or “General Agreement
on Tariffs and Trade” and by Article 2.1, of TBT which also means Agreement on “Technical
Barriers to Trade” where the United States has made assertions for countering the wealth of
Canadian. This was marked as a prove of discrimination.15
Non discrimination: Member nations must be sure that regulations which are technical
and standards which does not accord the treatments are less favorable compared to the imported
15 Petersmann, Ernst-Ulrich. "The dispute settlement system of the World Trade Organization and the evolution of
the GATT dispute settlement system since 1948." Common Market Law Review 31.6 (1994): 1157-1244.

10
WORLD TRADE LAW
products. This principle also applies with regards to conformity assessment process, that must
grant access to suppliers of similar products which are originating from the territories of any
other member nations on the basis of the conditions which are favorable than those which are
accorded to the suppliers of the similar products of same national origin and if it is originating in
other member nations in a situation which is comparable. This is stated in Article. 5.1 as well as
in Article 5.1.1 of TBT which also means Agreement on “Technical Barriers to Trade”.16
Thus, it can be concluded that the member nations of WTO which means “World Trade
Organization” has the opportunity to argue regarding the implementation of a certain policy and
whether or not it can be included in the rule of the said organization. The reason in this regard
must be specified along with the relevant evidences. It can then be decided that if a particular
policy will be violated or if the policy will be exonerated. Article 2.2 of TBT which also means
Agreement on “Technical Barriers to Trade” can also be extended to WTO or World Trade
Organization regime on the basis of non discrimination and non restriction. Thus, this write up
gives a critical review on the above stated assumptions.
16 “Technical Barriers to Trade”

11
WORLD TRADE LAW
Reference List:
Agreement on Reshipment Inspection
Agreement on Technical Barriers to Trade
GATS or the General Agreement on Trade in Services
General Agreement on Tariffs and Trade
Hoda, Anwarul. Tariff Negotiations and Renegotiations under the GATT and the WTO:
Procedures and Practices. Cambridge University Press, 2018.
Knight, Jane. "Trade creep: Implications of GATS for higher education policy." International
Higher Education 28 (2015).
Molina, Ana Cristina, and Vira Khoroshavina. "Technical Barriers to Trade Provisions in
Regional Trade Agreements: To What Extent Do They Go beyond the WTO TBT
Agreement." Technical Barriers to Trade Provisions in Regional Trade Agreements: To What
Extent Do They Go beyond the WTO TBT Agreement (2016): 371-420.
Petersmann, Ernst-Ulrich. "The dispute settlement system of the World Trade Organization and
the evolution of the GATT dispute settlement system since 1948." Common Market Law
Review 31.6 (1994): 1157-1244.
Trade-Related Aspects of Intellectual Property Rights or TRIPS.
Uruguay Round
World Trade Organisation

12
WORLD TRADE LAW
Switzerland complained against United States regarding Aluminum and Steel products.(DS556)
Zhuang, Wei. Intellectual property rights and climate change: interpreting the TRIPS Agreement
for environmentally sound technologies. Cambridge University Press, 2017.