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The Law faculty of Masaryk university

International private law

The department of international and european law


DISSERTATION THESIS

The evolution of the non-discrimination principle in international trade

JUDr.kateřina říhová, mile

2010/2011

I confirm that this dissertation thesis concerning the subject matter: “The Evolution of the Non-discrimination Principle in International Trade” is my own work. I have properly acknowledged all material and sources used in this paper. They can be found in footnotes and in the list of references.

ACKNOWLEDGEMENTS

This dissertation thesis is a result of my long-term research and activity in the field of international trade regulation which started during my magister and doctoral studies at the Masaryk University in Czech Republic. I was able to further deepen my knowledge and also obtain practical experience during my stay with the Czech Permanent Mission in Geneva in 2008 and 2009. Additionally, the Master of International Law and Economics (MILE) 2008/2009 hosted by the World Trade Institute in Bern also certainly made a great contribution. My expectations from that program were more than fulfilled and while studying in Bern I could open my eyes, enormously deepen my knowledge and start to really understand many aspects of international trade relations. I particularly appreciate the elements of that program that expanded my understanding of the economic underpinnings of the international commercial system. It helped me to better analyze some trade policies and features I had already observed in the past.

I would like to express my deepest gratitude to the dean of our faculty prof. JUDr. Naděžda Rozehnalová, CSc. She is the person who initially introduced me to the issue of international trade relations heralded by WTO and hereby formed my further research and field of interest. Her book about international trade law, which also includes chapter about GATT/WTO, was one of the first publications dealing with these issues in the Czech language. This publication, as well as her other publications, has been an enormous asset in the education of Czech students of law, economics and international relations. I am truly honored that Mrs. Rozehnalová was the supervisor of my dissertation thesis and provided me with immensely significant comments and valuable advice.

I would like to express my sincerest respect to those administering the MILE program, in particular to Prof. Thomas Cottier, Prof. Pierre Sauvé and Margrit Vetter. I will never forget that very special year in Switzerland, these faces of all my admirable classmates coming from all over the world, as well as every precious lesson at World Trade Institute.

I would like to thank Susan Hainsworth and Lothar Ehring, as they gave me many interesting opinions and views from the perspective of practitioners and real WTO experts. They were always patient to answer my questions related to the research topic and they gave me encouragement to work on this formidable topic.

I also thank to Josep Bosch for the intellectual companionship and management advice for my study in Bern and work on my dissertation thesis. I also must express my deep gratitude for the work of Willy Alfaro and Hector Torres on various WTO reports monitoring the financial and economic crisis and trade-related developments. These reports were valuable sources for my research about the current situation concerning non-discrimination issues.

C. Wright Mills once stated: “To write is to raise a claim to be read, but by whom?1Concerning this research paper, my answer is clear. I would like to dedicate this dissertation thesis to all inquiring students, practitioners and other individuals who want to learn more about the magical word “non-discrimination” and interconnected issues. As I come from the Czech Republic, I am aware of how many inquisitive students interested in this topic exist in our country and how little literature we have to satisfy their inquisitiveness and answer their questions. I felt that problem personally during my work on my magister and doctoral thesis. My task now is to spread the WTO knowledge in our country by giving lectures, bringing books to the libraries and writing articles. This dissertation thesis is written in English in order to be available to a broader international audience.

TABLE OF CONTENTS

ABSTRACT

INDEX OF ABBREVIATIONS

INDEX OF GATT/WTO CASES

INDEX OF EU CASES

1 INTRODUCTION

2 NON-DISCRIMINATION: THE CONCEPT AND ITS DE FACTO AND DE JURE DOCTRINAL TREATMENT

2.1 Introduction

2.2 The fundamental obligation of non-discrimination and its notion in the doctrines

2.2.1 The non-discrimination principle as a basis for cosmopolitanism

2.2.2 The non-discrimination principle as an element pervading the doctrines and law through time

2.2.3 The notion of non-discrimination principle and its dictionary interpretations

2.3 Most favoured nation and national treatment obligation as main elements of modern non-discrimination principle

2.3.1 Most favoured nation

2.3.2 National treatment

2.4 Various kinds of discrimination: de jure and de facto discrimination

2.4.1 The notion and scope of de jure discrimination

2.4.2 The notion and scope of de facto discrimination

2.4.3 De facto versus de jure discrimination

2.5 The non-discrimination principle explained by the doctrines of political economy

2.6 Conclusion

3 THE EVOLUTION OF THE NON-DISCRIMINATION PRINCIPLE AND ITS ARTICULATION IN INTERNATIONAL ECONOMIC LAW

3.1 Introduction

3.2 Evolution of the non-discrimination principle in the bilateral agreements originating from the “Era of swings”

3.2.1 The roots of non-discrimination principle

3.2.2 The era of creating modern type of non-discrimination principle

3.3 Evolution of the non-discrimination principle in the multilateral era of sustainable stability building

3.3.1 Creating of GATT 1947 and other international organizations and multilateralising the non-discrimination principle

3.3.2 The way from GATT 1947 to establishment of WTO and the evolution of the non-discrimination principle in this period

3.3.3 Creation of the WTO and carrying the non-discrimination principle forward into that system

3.3.4 Doha Round and its impact on the non-discrimination principle

3.4 Evolution of the non-discrimination principle during the current era of harmful crisis period and recovery – special insight into the EU

3.4.1 The essence of the non-discrimination principle during the era of financial and economic crisis

3.4.2 Trade-related developments observed since the third-quarter of 2008 on the territory of WTO Members, especially EU and Member States

3.4.3 Selected pre-crisis de facto discriminatory measures

3.4.4 Selected possible de-facto discriminatory measures which were contemplated by EU or its Member States during the current financial and economic crisis

3.4.5 Evaluation of the issue of pre-crisis and crisis possible de-facto discriminatory measures of EU and its Member States

3.5 The legal anchorage of the non-discrimination principle evolution today: The scope and nature of WTO law and its main non-discriminatory provisions in force

3.5.1 The WTO rules-based system and its main principles

3.5.2 The nature and the position of the WTO law in the law regulating international trade transactions

3.5.3 The role of the non-discrimination principle in the Preamble of the Marrakesh Agreement constituting the WTO and in the Preamble of the GATT 1994

3.5.4 Conspectus of the most important non-discrimination provisions through the WTO law

3.5.5 The analysis of the main non-discriminatory provisions contained in GATT 1994

3.6 Conclusion

4 DISCRIMINATION – THE CENTRAL REALITY OF THE WTO

4.1 Introduction

4.2 Study of pertinent WTO cases: Discrimination – the central reality of the WTO

4.2.1 WTO cases dealing with the most favoured nation

4.2.2 WTO cases dealing with national treatment

4.3 Conclusion

5 CONCLUSION

6 LIST OF REFERENCES

6.1 Monographs

6.2 Textbooks

6.3 Periodicals

6.4 Working Papers, Reports and Other Publications

6.5 Selected WTO and EU Law and Other WTO Documents

6.6 Internet Sources

ABSTRACT

This dissertation thesis is a reaction to the development trends of non-discrimination principle in international trade. Trade-related developments, political situations, economic doctrines and economic and financial crises which appeared since the mankind started to initiate itself in international trade influenced considerably also the approach of making international trade policies towards protectionism or liberalism.

From the initial policy of taking in account only self interest and solving problems with trade battles typical for behavior of sovereign states in the period before the born of multilateral trading system, the later approach changed to policy of trade cooperation with embodied principle of non-discrimination. The notion of non-discrimination principle evolution in international trade itself is rather extensive. Therefore for the purpose of my doctoral research this thesis focuses on the principle of non-discrimination as a key concept of the World Trade Organization law and policy.

More interestingly, the financial and economic crisis which occurred during my work on this thesis brought many interesting observations towards non-discrimination principle and use of various trade and trade-related measures which will be also mentioned in the thesis.

The objective of this thesis is to clarify the evolution of non-discrimination principle and the analysis of its role as principle theoretically embedded in legal documents on one side, however greatly breached and circumvented in the practice of multilateral trading system. The key idea leading this thesis comes from the hypothesis that the non-discrimination principle unquestionably exists and constitutes the cornerstone of WTO law and is embedded in legal documents of international economic law dealing with international trade in public sector. The character of non-discrimination principle is in theory strong and firmly built to ensure equal trading opportunities. However in practice due to the numerous exceptions and other factors, the effective operation of the non-discrimination principle is undermined. Hence the role of the non-discrimination principle in practice is different to its role contemplated in theory. One must ask what is then the role of this principle in the theory and in the practice.

With the support of the legal standard given by the WTO case law, various provisions in WTO agreements and scholarly opinions of international experts, I aim to scrutinize the notion of non-discrimination, de facto and de jure discrimination, like products2 and selected trade and trade-related measures and policies with possible discriminatory effect enacted by EU and Member States before and during the current financial and economic crisis. The research field of this thesis provides us with several interesting research questions, which will be introduced later in the introduction and answered in the paper.

INDEX OF ABBREVIATIONS

ACP – African, Caribbean and Pacific Group of States

ADA – Anti-dumping Agreement

AGA – Agreement on Agriculture

ASEAN – Association of Southeast Asian Nations

COMESA – Common Market for Eastern and Southern Africa

DDA – Doha Development Agenda

EC – European Communities

EEC – European Economic Community

EPA – Economic Partnership Agreement

EU – European Union

EC – European Communities

ECJ – European Court of Justice

ECOSOC – United Nations Economic and Social Council

EEC – European Economic Communities

EFTA – European Free Trade Association

FCN – Friendship, Commerce and Navigation

FSC – Foreign Sales Corporations

G20 – Group of Twenty Major Economies

GATT 1947 – General Agreement on Tariffs and Trade 1947

GATT 1994 – General Agreement on Tariffs and Trade 1994

GATS – General Agreement on Trade in Services

GSP – Generalized System of Preferences

GSTP – Global System of Trade Preferences

IBRD – International Bank for Reconstruction and Development

ICITO – Interim Commission for the International Trade Organization

ILC – International Law Commission

IMF – International Monetary Fund

ITO – International Trade Organization

LDC – Least Developed Countries

MERCOSUR – Mercado Común Del Sur

MFN – Most Favoured Nation

NAFTA – North American Free Trade Agreement

NT- National Treatment

OECD – Organization for Economic Co-operation and Development

OTC – Organization for Trade Cooperation

PNTR – Permanent Normal Trade Relations

RTA – Regional Trade Agreement

PTA – Preferential Trade Agreement

SCM – Subsidies and Countervailing Measures

SPS – Sanitary and Phytosanitary Measures

TBT – Technical Barriers to Trade

TPR – Trade Policy Review

TPRB – Trade Policy Review Body

TRIMS – Agreement on Trade-Related Investment Measures

TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights

TRQ - Tariff Rate Quota

UN – United Nations

UNCTAD – United Nations Conference on Trade and Development

US – United States

VCLT – Vienna Convention on the Law of Treaties

WTO – World Trade Organization

INDEX OF GATT/WTO CASES

Short Title

Full Case Title and Citation

Argentina – Footwear (EC)

Appellate Body Report, Argentina – Safeguard Measures on Imports ofFootwear, adopted 12 January 2000, WT/DS121/AB/R, DSR 2000:I

Argentina – Hides and Leather

Appellate Body Report, Argentina – Measures Affecting the Export of Bovine Hides and the Import of Finished Leather, adopted 16 February 2011, WT/DS155/AB/R, DSE 2001:II

Brazil - Aircraft

Appellate Body Report, Brazil – Export Financing Programme for Aircraft, adopted 20 August 1999, WT/DS46/AB/R, DSR 1999:III

Canada - Aircraft

Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, adopted 20 August 1999, WT/DS70/AB/R, DSR 1999:IV

Japan – Alcoholic Beverages

Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS28/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I

Canada – Autos 

Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI

Canada – Herring and Salmon

Panel Report, Canada – Measures Affecting Export of Unprocessed Herring and Salmon, adopted 22 March 1988, BISD 35S/98

Canada – Periodicals 

Appellate Body Report, Canada – Certain Measures Concerning Periodicals, WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I

Chile – Alcoholic Beverages 

Appellate Body Report, Chile – Taxes on Alcoholic Beverages, WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, DSR 2000:I

Dominican Republic – Import and Sale of Cigarettes

Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/P/R, 26 November 2004

EC - Asbestos

Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, adopted 5 April 2001, WT/DS135/AB/R, DSR 2001:VII and DSR 2001:VIII

EC – Bed Linen

Appellate Body Report, European Communities Anti-Dumping Duties on Import soft Cotton-Type Bed Linen from India, adopted 12 March 2001, WT/DS141/AB/R, DSR 2001:V and DSR 2001:VI

EC – Bananas III 

Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II

EC – Bananas III
(Article 21.5 – Ecuador) 

Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador, WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II

EC – Hormones 

Appellate Body Report, European Communities - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I

EEC – Animal Feed Proteins

Panel Report, European Economic Communities – Measures on Animal Feed Proteins, adopted 14 March 1978, BISD 25S/49

EEC – Imports of Beef

Panel Report, European Economic Communities – Imports of Beef from Canada, adopted 10 March 1981, BISD 28S/92

Germany - Sardines

Working Party Report, Treatment by Germany of Imports Sardines, adopted 31 October 1952, BISD 1S/53

India - Autos

Appellate Body Report, India – Measures Affecting Trade and Investment in the Motor Vehicle Sector, adopted 5 April 2002, WT/DS146/AB/R, WT/DS175/AB/R, DSR 2002:V

India – Quantitative Restrictions

Appellate Body Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, adopted 22 September 1999, WT/DS90/AB/R, DSR 1999:V

Indonesia - Autos

Appellate Body Report, Indonesia Certain Measures Affecting the Automobile Industry, adopted 23 July 1998, WT/DS54/AB/R, DS55, DS59/AB/R, DS64/AB/R, DSR 1998:VI

Italy – Agricultural Machinery

Panel Report, Italian Discrimination Against Imported Agricultural Machinery, adopted 23 October 1958, BISD 7S/60

Japan – Film 

Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/P/R, adopted 22 April 1998, DSR 1998:IV

Japan – SPF Dimension Lumber

Panel Report, Japan – Tariff on Imports of Spruce, Pine, Fir Dimension Lumber, adopted 19 July 1989, BISD 36S/167

Korea – Alcoholic Beverages 

Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I

Korea - Beef

Panel Report, Korea – Restrictions on Imports of Beef, adopted 7 November 1989, BISD 36S/202, 234, 268

Korea – Various Measures on Beef

Appellate Body Report - Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, adopted 10 January 2001, WT/DS161/AB/R, DS169/AB/R, DSR 2001:I

Korea - Dairy

Appellate Body Report, Korea – Definitive Safeguard Measure on Import sof Certain Dairy Products, adopted 12 January 2000, WT/DS98/AB/R, DSR 2000:I

Mexico – Taxes on Soft Drinks

Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, 24 March 2006, DSR 2006:I

EC – Tariff Preferences

Appellate Body Report, European Communities – Conditions for the Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R, adopted 20 April 2004, DSR 2004:III

Spain – Unroasted Coffee

Panel Report, Spain – Tariff Treatment of Unroasted Coffee, adopted 11 June 1981, BISD 28S/102

Japan – Alcohol I

Panel Report, Japan - Custom Duties, Taxes and Labeling Practices on Imported Wines and Alcohol Beverages, adopted 10 November 1987, BISD 34S/83

EEC - Beef

Panel Report, EEC – Imports of Beef from Canada, adopted 10 March 1981, BISD 28S/92

EEC – Bananas I

Panel Report, EEC –Member States Import Regimes for Bananas I, DS32/P/R, unadopted, 1993

EEC – Bananas II

Panel Report, EEC -Import Regime for Bananas II, DS38/P/R, unadopted, 1994

Belgium – Family Allowances

Working Party Report, Belgium – Family Allowances, adopted 7 November 1952, BISD 1S/59

Thailand - Cigarettes

Panel Report, Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, adopted 7 November 1990, BISD 37S/200

Thailand – H-Beams

Appellate Body Report, Thailand – Anti-Dumping duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, adopted 5 April 2001, WT/DS122/AB/R, DSR 2001:VII

Turkey - Textiles

Appellate Body Report, Turkey – Restrictions on Imports of Textiles and Clothing Products, WT/DS34/AB/R, adopted 19 November 1999, WT/DS34/AB/R, DSR 1999:VI

US – 1916 Act

Appellate Body Report, United States – Anti-Dumping Act of 1916 – Complaint by the European Communities, adopted 26 September 2000, WT/DS136/AB/R, DS162/AB/R, DSR 2000:X

US – Customs User Fee

Panel Report, United States – Customs User Fee, adopted 2 February 1988, BISD 35S/245

US - FCS

Appellate Body Report, United States – Tax Treatment for „Foreign Sales Corporations“, adopted 20 March 2000, WT/DS108/AB/R, DSR 2000:IV

US - Gasoline

Appellate Body Report, United States –Standards for Reformulated and Conventional Gasoline, adopted 20 May 1996, WT/DS2/AB/R, DSR 1996:I

US – Hot-Rolled Steel

Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, adopted 23 August 2001, WT/DS184/AB/R, DSR 2001:X

US - Lamb

Appellate Body Report, United States – Safeguard Measures on Import sof Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, adopted 16 May 2001, WT/DS177/AB/R, DS178/AB/R, DSR 2001:IX

US – Malt Beverages

Panel Report, United States – Malt Beverages, adopted 19 June 1992, BISD 39S/206

US – MFN Footwear

Panel Report, United States – Denial of Most Favoured Nation Treatment as to Non-Rubber Footwear from Brazil, adopted 19 June 1992, BISD 39S/128

US - Safeguards

Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Certain Steel Products, adopted 10 December 2003, WT/DS248/AB/R, DS249/AB/R, DS251/AB/R, DS 252/AB/R, DS253/AB/R, DS254/AB/R, DS258/AB/R, DS259/AB/R, DSR 2003:VIII

US – Section 337

Panel Report, United States – United States Section 337of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/I/345,

US - Shrimp

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, adopted 6 November 1998, WT/DS58/AB/R, DSR 1998:VII

US - Superfund

Panel Report, United States – Taxes on Petroleum and Certain Imported Substances, adopted 17 June 1987, BISD 34S/136

US - Tobacco

Panel Report, United States Measures Affecting the Importation, Internal Sale and Use of Tobacco, adopted 4 October 1994, BISD 41S/I/131

US – Section 211 Appropriations Act

Appellate Body Report, United States – Section 211Omnibus Appropriations Act of 1998, adopted 1 February 2002, WT/DS176/AB/R, DSR 2002:II

INDEX OF EU CASES

EU cases

International Fruit 21 – 24/72, 1972, ECR 1219; Schulter 9/73, 1973, ECR 1135; SPI/SAMI 290 – 291/81, 1983, ECR 801; SIOT 266/81, 1983, ECR 731; Singer 290 – 291/81, 1983, ECR 847 ; Chiquita Italia C – 469/93, 1995, ECR I - 4973; Germany v. Council C – 280/93, 1994, ECR I – 4973;Fediol 70/78, 2989, ECR 1781; Nakajima C – 69/89, 1991, ECR I - 2069; Interfoods 92/71, 1972, ECR 231; Commission v. Germany C – 61/94, 1996, ECR I - 3989; Commission v. Portugal C – 404/97, 2000, ECR I – 4897.



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