In anti-dumping procedures, the EU authorities have adjusted State-distorted input costs in the constructed normal value to market benchmarks. This methodology increases the amount of anti-dumping duties and hence import barriers to foreign goods produced with low-priced raw materials. Such cost adjustments are based on certain EU anti-dumping provisions that implement corresponding World Trade Organization (WTO) rules under which the cost of input must be derived, as a principle, from the records of target companies in the exporting country if those records, inter alia, reasonably reflect production costs of the product under investigation. But in the case of input costs distorted by the government, the EU authorities have typically deviated from this principle relying on alternative sources on the grounds of unreasonable costs. While the EU jurisprudence has so far been generally lenient towards this methodology as applied to significant distortions in the raw material (upstream) market, the recent WTO appellate ruling in EU–Biodiesel is rather negative on its use in the presence of the valid domestic records. This article examines the EU anti-dumping practice as reviewed in both EU and WTO judicial proceedings and discusses some legislative reforming options under both regimes. It concludes that the WTO anti-dumping rules should be amended to allow market-oriented cost adjustments in the normal value, on the one hand, and ensure parallel export price adjustments, on the other.

Recently, the World Trade Organization (WTO) granted Mexico the right to retaliate against the US as a compensation for losses related to the US ‘dolphin-safe’ label (May 2017). Despite the diversity of works on the issue, few analyze the changes in the US approach to dolphin protection as a result of international and domestic pressures related to the tuna–dolphin controversy. This paper seeks to understand such changes and their consequences using the process tracing method. It shows that (1) the US approach to dolphin protection passed through a process of policy change motivated by trade and diplomatic concerns mediating dolphin protection, and that (2) it was partially reversed in court as an outcome of the concessions offered to get the policy change approved. Finally, the paper argues that (3) this process led to the lock-in of the US ‘dolphin-safe’ label and to its expansion in response to recent WTO decisions.

The EU's decision to follow in the footsteps of the United States by breaking with its past practice of not applying countervailing duties against Chinese subsidies has left many wondering whether its first imposition of such duties on Coated Fine Paper from China was a watershed moment in EU trade defense history or merely an aberration, and if the former, just how profound of an impact these cases might have in the future. The article examines the key considerations which can aid one in determining the probability of the EU making an anti-subsidy practice against China routine, as well as the extent to which that practice could have a substantial practical impact on duty rates. This examination entails a look at the EU's historical use of the anti-subsidy instrument as a subordinate complement to the anti-dumping instrument, the impact of the EU's adoption of the ‘lesser duty rule’ on concurrent investigations, the way in which the expiration of a key provision in China's Protocol of Accession to the WTO will increase the desirability of the anti-subsidy instrument, as well as a look at how the European Commission might have fallen foul of the SCM Agreement with regard to a few key points.

This paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate Body decisions in WTO dispute settlement, the paper rejects the US argument by refuting each of the three premises of the US argument, i.e., the WTO legal system based on Common Law; WTO follows stare decisis; and the WTO has rules against dicta. In addition to original contributions on the nature of the WTO dispute settlement system in theory, the article also provides some practical advice on how the controversy may be resolved.

This paper views tariff-cutting formulas as a potential solution to the free-rider problem that arises when market opening is negotiated bilaterally and extended on a most-favored-nation basis. The negotiators in the Doha Agenda chose formulas that are ideal from an economic efficiency viewpoint in that they most sharply reduce the highest – and most economically – costly tariffs. When the political support that gave rise to the original tariffs is considered, however, this approach appears to generate very high political costs per unit of gain in economic efficiency. The political costs associated with the formulas appear to have led to strong pressure for many, complex exceptions, which both lowered and increased uncertainty about members' market access gains. Where tariff cuts focus on applied rates, it seems likely that a proportional cut rule would reduce the political costs of securing agreements. However, detailed examination of the Doha proposals with their product exceptions suggests that negotiators are likely to find cuts with exceptions politically attractive but economically costly when cuts are based on bound tariffs with different degrees of binding overhang.

International institutions have acquired an almost obvious presence in international politics and the question of their design has received prominent attention in recent years. Apart from key organizational characteristics like size of their membership, policy scope, depth of cooperation, decision-making rules, and their degree of openness towards non-state actors, one of their most striking features is their differing degree of legalization or judicialization (Goldstein and Martin, 2000; Zangl, 2008). Some institutions possess strong enforcement mechanisms or rules, while others rely on voluntary cooperation by their members.

The African Growth and Opportunity Act (AGOA) was signed into law in May 2000 to encourage increased trade and investment between the United States and Sub-Saharan Africa (SSA). It provides eligible countries with duty free access to the US market for over 1800 products in addition to those available under the Generalized System of Preferences (GSP). The benefits extend through 2025. This study explores the link between US trade preferences under AGOA and beneficiary country exports. Using a large US import database, the study examines the extent to which AGOA influences export performance. It also examines the moderating roles of rule of law and foreign direct investment. The results largely indicate that AGOA has a positive and significant effect on beneficiary country exports. It also shows that rule of law moderates the relationship between AGOA and export performance. We believe that AGOA will target foreign direct investment (FDI) to SSA from other advanced regions such as the EU to take advantage of the US market. However, the role of FDI appears to be weak in moderating the relationship between trade preferences (tariff concessions) and exports from beneficiary countries to the US market.

Some cases attain ‘landmark’ status because they constitute a jurisprudential paradigm shift. Others attain such status because in them a decisor, usually a supreme jurisdiction, renders a definitive, ‘canonical’, ruling. Sometimes it is both reasons. Sometimes, rarely, it is neither. EC–Asbestos is such a rare case. It may well qualify as a landmark. It has, justifiably, attracted huge attention and, understandably, considerable controversy. Its reasoning, however, is so decidedly non-definitive that it is not, consequently, possible to say whether it represents a veritable paradigm shift or is just a badly reasoned case by the Appellate Body (AB), albeit with a non-controversial result.

The Common External Tariff (CET) of the East African Community (EAC) customs union has long been considered the cornerstone of the most successful example of regional integration in Sub-Saharan Africa. In this paper, we assess the implementation of the EAC-CET using a novel dataset of country- and firm-level deviations from the common tariff regime constructed by digitizing information in gazettes published by the Secretariat of the EAC between 2009 and 2019. Employing these data, we present five patterns on EAC tariff policy: (i) increased usage of country-level deviations from the common tariff regime render the EAC-CET less and less ‘common’; (ii) Kenya, Tanzania, and Uganda predominantly use unilateral deviations to increase external protection while Rwanda mostly decreases tariffs; (iii) Kenya, Tanzania, and Uganda increase tariffs for the same classes of products, but target different industries; (iv) unilateral tariff reductions at the country level are mostly used to facilitate access to inputs; (v) data on firm-level exemptions suggest that private sector development in the EAC would benefit from lower tariffs on intermediate inputs. Our findings demonstrate an incipient but clear trend in the EAC away from a communal tariff regime and towards national and more protectionist trade policies.

Chapter IX of the ‘Report of the Consultative Board on The Future of the WTO’ concerns ‘The role of the WTO Director-General and Secretariat’. The report generally expresses concern that the WTO secretariat, although ‘highly skilled’ and ‘well-regarded’ has become ‘more timid’ and passive than in the past, and that the ‘mutual confidence’ between delegations and WTO staff has declined. The report finds that the Director-General has become more of a ‘spokesperson and marketing executive’ for the organization than a leader who represents a driving, proactive force in the shaping and brokering of trade negotiations, as compared with the past where Directors-Generals ‘were sometimes regarded virtually as spiritual leaders of the system’. It warns that the costs of such a trend will be ‘lost efficiency’ and a loss of intellectual leadership.

Various aspects of trade and investment in air transport services are regulated by a series of bilateral agreements in which rights of market access are exchanged. Industry commentators have identified this system and the associated national ownership rules as well as the prevailing attitude of competition authorities (on merger policy and on airport pricing) as the most important factors limiting adjustment in the international air transport industry. These ‘pillars of stagnation’ are examined here. Features of the bilateral agreements in aviation that are similar to those of other preferential trading agreements are noted and linked to the slow pace of policy reform in this industry. The three ‘pillars’ are not independent, and effective liberalization of trade and investment in air transport services depends on complementary regulatory reform. Options are presented on ways in which these changes might be designed and introduced, and in what sequence that might be done. Air transport services are currently excluded from the WTO's General Agreement on Trade in Services (GATS), and an important enquiry is how multilateral commitments recorded in the GATS might support reform.

Interaction between regional trade agreements (RTAs) and the multilateral trading system established by the World Trade Organization (WTO) is an issue of significance but nevertheless remains unsettled. This article aims to explore the influence RTAs have generated had on the WTO system, with particular focus on the approach adopted by the adjudicators when dealing with irreconcilable RTA–WTO conflicts. During the development of 20 years’ jurisprudence, WTO adjudicators offered responses to a number of critical questions. On the one hand, direct endorsement of RTA provisions with the effect of prevailing over the counterpart WTO rules appears to be very difficult, either through legal interpretation or application. On the other hand, unlike often being argued, a close review of WTO case law does not reveal a biased adjudicatory approach against regionalism, as compared to other sources of public international law. When dealing with RTA-related matters, the Appellate Body has been advocating an all-encompassing approach featured by the emphasis on the common intention during the interpretative exercise and the promotion for the WTO built-in mechanisms for valid modification. Such an approach is, to a certain extent, misleading in the RTA –WTO context and has led to certain ill-founded adjudicatory choice.

The value of preferential market access schemes has fallen sharply. Drawing on a relaxation announcement of July 2016 simplifying origin requirements for access to the EU that should help improve market access, thereby contributing to alleviate the refugee crisis in Jordan, this paper argues that a simplification of origin requirements is a straightforward way to enhance preferential market access. Yet, the EU decision limits the beneficiaries who must be located in designated special economic zones, which limits preferential market access. The paper compares the performance of Jordanian exports to the EU and the US under their respective FTAs. It shows that Jordanian exports to the US have grown more rapidly than exports to the EU over the last 15 years. The study documents lower utilisation of preferences in the EU than in the US, especially in Textiles and Apparel (T&A) in spite of non-negligible preferences. Three contributing factors are identified: (i) higher adjusted preferences for apparel in the US than in the EU; (ii) greater competition from other suppliers (mostly from LDCs) in the EU market than in the US market; (iii) simpler origin requirements in the case of the Jordan–US FTA. Comparative evidence from the two FTAs and econometric estimates suggest that this should help restore market access for Jordanian exports to the EU. These estimates provide additional evidence that origin requirements suppress market access. Other pathways to simplify origin requirements are offered in the conclusion.

While the theory of economic policy offers a potential framework for thinking about the joint pursuit of economic objectives (EOs) and non-economic objectives (NEOs), over time the theory of economic policy was formalized in a way that considers NEOs as constraints that are given, rather than as goals that may themselves be endogenous alongside EOs. We examine the analytical treatment of NEOs as co-determined with EOs, revisiting some of the ground broken by Alan Winters in his analysis of NEOs. We review the place of NEOs in the theory of economic policy, discuss current practice in the representation of such objectives as exogenous constraints, and develop an argument for representation of NEOs as objectives in themselves.

In 2007, the US reversed its long-standing policy prohibiting the simultaneous imposition of anti-dumping duties (ADDs) and countervailing duties (CVDs) against non-market economies. The EU followed the US lead and also began imposing simultaneous ADDs and CVDs. The practice, however, leads to double remedies, which are when a domestic subsidy is offset by both an ADD and a CVD. The WTO Appellate Body recently ruled that double remedies were inconsistent with the Agreement on Subsidies and Countervailing Measures and that the burden was on the investigating authorities to ensure that double remedies were not being imposed.

The United States (US) imposed, in July 1999, a safeguard on lamb meat, in the form of tariff rate import quotas, which were to be applied for a period of three years. The measure was based on findings by the US International Trade Commission that increased imports of lamb meat were a substantial cause of threat of serious injury to the US industry producing the like product. Following complaints by New Zealand and Australia that the measure was inconsistent with Articles I, II and XIX of GATT 1994, and several provisions of the Agreement on Safeguards, the World Trade Organization (WTO) Dispute Settlement Body established, in November 1999, a panel to review the consistency of the US measure with the mentioned WTO rules.

Two of the four issues in this Appellate Body Report concerned the proper scope of Article 21.5 DSU compliance panel proceedings; the other two issues concerned the Appellate Body's review of the Panel's use of evidence. On the Article 21.5 issues, the Appellate Body essentially ruled that an Article 21.5 compliance proceeding could evaluate the WTO consistency of: (i) the entirety of an implementation measure (including parts of the measure that did not specifically implement DSB recommendations and rulings) and (ii) new subsidy grants made under a program in respect of which prior subsidy grants had been found to cause serious prejudice so as to determine whether the new grants also resulted in serious prejudice. On the evidentiary issues, the Appellate Body upheld the Panel's conclusions, although it modified certain of the Panel's reasoning. Probably the most interesting aspect of the case was the substantial deference showed by the Appellate Body to the Panel's consideration of causation and non-attribution issues. This deference was striking compared to the lack of deference that the Appellate Body has given to national authorities on those issues. We detect, however, a welcome interest on the part of the Appellate Body to require the use of analytical tools on the part of panels evaluating serious-prejudice cases.

In 1993, the US Department of Commerce began to levy countervailing duties on imports of certain leaded bars from the United Kingdom. The United States applied tariffs to goods imported from British Steel Engineering Steels, a subsidiary of British Steel plc. Following investigations by the US Department of Commerce and the United States International Trade Commission, the US authorities held that the imposition of duties was both required by Section 701 of the Tariff Act of 1930 (as amended) and not in violation of any of the country’s obligations as a member of the World Trade Organization.

The World Trade Organization provides a forum for the settlement of trade disputes arising between its 148 Members. Should consultations fail, the parties may choose to initiate formal proceedings in Geneva, and must do so in preference to taking unilateral action. The dispute settlement rules are presently under review with a view to their clarification and improvement, making this a natural time to ask whether the appropriate strategy has been identified. This article focuses on the functions of compensation in the overall context of WTO remedies. Particular attention is given to the prospects for new disciplines and increased practice connected with the granting of both trade compensation and financial compensation. Also considered is the extent to which financial compensation can and should be linked to reparation in the sense of correcting the injury caused by WTO violations. The discussion is informed by the general international law position, by proposals made during the on-going review process and by emerging dispute settlement practice.