Devon Whittle » Trade

What's immoral at the WTO?

devonwhittle — Tue, 25 Nov 2008 07:11:13 +0000

Roger Alford at Opinio Juris investigates public morals at the WTO. He’s got interesting list of products protected banned in different countries from UPS. I particularly like India banning maps that incorrectly depict Indian boundaries.

What's immoral at the WTO? is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

More on the extent of AB powers to interpret WTO agreements

devonwhittle — Thu, 20 Nov 2008 07:07:51 +0000

There’s more on the on-going debate over the extent that AB can ‘interpret’ WTO agreements. The US now says that the AB can ‘clarify’ but not ‘interpret’ or ‘amend’ any agreement. Is this the worst case of legal semantics being played?

More on the extent of AB powers to interpret WTO agreements is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

China, Tainted Milk and the WTO

devonwhittle — Fri, 31 Oct 2008 22:36:53 +0000

China’s concerned that people are violating their WTO agreements by banning the tainted milk, but it’s clear that countries can take action to ensure food safety. China, Tainted Milk and the WTO is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com. Related posts:China pushing for better TRIPS What's immoral at the WTO? WTO Consensus Decision [...]

China, Tainted Milk and the WTO is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

Who owns hummus?

devonwhittle — Fri, 31 Oct 2008 22:36:52 +0000

Israel is selling hummus and falafel as Israeli, Lebanon sues. I love the quote about the “feta precedent”. Geographic Indicators are big business these days, it’s one topic the WTO negotiations are getting a bit stuck on too.

Who owns hummus? is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

More on WTO Precedent – what Members think

devonwhittle — Wed, 01 Oct 2008 00:07:33 +0000

The whole issue of the precedential value of past WTO Appellate Body and Panel reports sometimes just seems like semantics. IELP has a summary of some WTO Member’s positions on the topic here.

More on WTO Precedent – what Members think is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

BBC's The Box – tracking a shipping container

devonwhittle — Fri, 12 Sep 2008 05:40:56 +0000

This new project by the BBC, called The Box, sounds really interesting. They are tracking an average shipping container using a GPS device. The container will be actually used for really shipping and criss-cross the globe while being tracked on the BBC website. If it comes to Melbourne hopefully I’ll get a photo.

BBC's The Box – tracking a shipping container is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

IIL: Advisory Centre for WTO Law

devonwhittle — Fri, 29 Aug 2008 13:13:09 +0000

Over the winter I visited Geneva for two weeks studying Institutions in International Law, this post is part of a series on what I learnt and thought about the institutions we visited. See them all here.

While in Geneva, we had the pleasure of visiting the Advisory Centre for WTO Law and having a presentation on the work that they do. The ACWL is a kind of ‘legal aid’ for developing countries needing assistance with WTO law. Their membership includes 25% of WTO members, and is mostly developing countries. They have an important role to play in levelling out the power imbalances inherent in the WTO system, as well as providing more general training on WTO law. So far they have been used in about 20% of disputes.

Importantly the Centre only provides legal advice, so is unable to assist with general policy advice or advice on negotiating positions at the WTO. Their limited mandate ensures they can do excellent work with a very small staff, I was amazed at how much work they do given how small their staff is.

Theoretically the WTO Dispute Settlement System is a very empowering system for poorer or less powerful nations. By giving defined rights to countries, regardless of their size or power, and providing a forum within the rights can be enforced, the WTO lessens the ‘bullying’ that once accompanied trade disputes. Rich nations can’t do what they like without fear of real repercussions.

However, I wonder if the reality of the system is that the WTO dispute settlement is most useful to middle powers, nations that aren’t rich and powerful but aren’t extremely reliant on other powers. While it isn’t necessarily helpful for major powers, depending on what deal was struck during negotiations, because of their prior ability to get their way anyway. And recourse to legal dispute resolution may be out of reach for many poor nations due to cost in many instances. For middle powers, though, the Dispute Settlement System is an empowering way to resolve disputes with major powers and other nations, one that they can afford to use.

I haven’t read any statistics or analysis on this, so I’d be interested to hear what anyone else thinks. Of course thanks to the work of the ACWL and other institutions dispute settlement means more for poorer nations as they are able to realise their rights against powerful nations.

IIL: Advisory Centre for WTO Law is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

Doha: failing towards success?

devonwhittle — Sat, 23 Aug 2008 10:49:25 +0000

Gresser writes over at Yale Global of the broadening consensus that is emerging out of Doha, suggesting they were quite the failure we all think they were. Doha: failing towards success? is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com. Related posts:No deal at Doha = more litigation? Doha was no development round Gallagher on [...]

Doha: failing towards success? is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

World Bank Trade Indicators

devonwhittle — Thu, 21 Aug 2008 02:45:57 +0000

Peter Gallagher points out the new World Bank World Trade Indicators as a good resource for comparing differing levels of openness to trade. For example, even though Australia is (rightly) known as a relatively low-tariff nation when it comes to agriculture, the WTIs show we have hidden barriers equal to up to 36% across the sector. I’m not sure I agree with Gallagher that this means quarantine and other procedures mean we are “paying way over the odds” for environmental protection though, I think people do place a high value on keeping Australia free from pests and disease. Certainly GM has shown that ‘pure food’ demands a premium.

World Bank Trade Indicators is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.

Universal Service Obligations, WTO Law and "Administration"

devonwhittle — Thu, 21 Aug 2008 01:56:05 +0000

A large part of the research role given to me as part of my involve in the ELSA WTO Moot was in regards to the Negotiating Group on Basic Telecommunications Reference Paper, specifically Section Three:

3. Universal Service

Any Member has the right to define the kind of universal service obligation it wishes to maintain. Such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service defined by the Member.

This section is designed to protect the policy goals of governments, to give access to telecommunications to their citizens, but at the same time ensure that governments do not use their universal service obligations (USO) as an anticompetitive trade barrier.

However, as we found the wording of section three is anything but clear when it comes to working out the precise obligations of Members.

The first stumbling block we found was arguing over the significance of the word administered. That is, a USO will not be regarded as anti-competitive per se provided they are administered in a certain manner. Some writers appear to think that the word administered has almost no meaning in the context of Section Three. They read section three to ban any USO that itself is not transparent, non-discriminatory and competitively neutral.

I can see why this approach is taken – it does seems incongruent that a USO that itself was discriminatory and non-transparent would be allowed by this section as long as it is administered in a transparent and non-discriminatory way. Not to mention the difficulty in finding the dividing line between substance and administration in that instance – one of the team constantly asked if something that was substantively discriminatory could really be administered in a non-discriminatory way.

However, it would appear that “administration” is a central word for this section. Though Section Three has not been considered by any Panel or Appellate Body, previous decisions do give some guidance as to what “administration” might mean.

The Panel in US – Gambling when examining Art VI of the GATS, which contains a variety of provisions in relation to domestic regulatory measures including one relating to their administration, came to the conclusion that:

Article VI:1 “does not apply to measures of general application themselves but, rather, to the administration of these measures.”

Similarly, the Appellate Body when considering Art X:3(a) of the GATS in EC – Bananas found that its requirements do not apply to “laws, regulations, decisions and rulings” themselves, but only to their administration. Also its interpretation of Art 1.3 of the Licensing Agreement similarly held that it did “not require the import licensing rules, as such, to be neutral, fair and equitable” but only their administration.

Thus it would seem more consistent to see Section Three of the Reference Paper as granting Members a very wide right to define the substance of their USO as they wish, and to merely require certain administrative standards to be in place. Indeed, this would be consistent with the historic uses of USOs which often are substantively discriminative in that they redistribute resources to discriminate in favour of consumers who are unable to afford access to telecommunications.

Section Three, therefore, does not wish to challenge these efforts by governments to expand telecommunications access it merely applies minimal standards to its administration. Of course this doesn’t give Members free reign to design USOs to hide trade barriers, the “not more burdensome than necessary” test at the end of section three provides a check to this impulse. Additionally, there is also the question of the divide between administration and substance. While the Panel in Argentina – Hides and Leather has begun to address so-called “administrative provisions”, their scope has yet to be clarified.

Universal Service Obligations, WTO Law and "Administration" is a post from: Devon Whittle. You can contact the author at devonwhittle@gmail.com.