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2017 | Supplement | Chapter

1. Regulating Free Trade from the WTO Perspective

Author : Gurwinder Singh

Published in: Subsidies in the Context of the WTO's Free Trade System

Publisher: Springer International Publishing

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Abstract

The international legal framework plays a significant role in regulating business, not only within nations but also across national boundaries. No country in the world is sufficient in itself and so everyone has to depend upon each other. It is widely presumed that international trade helps a nation to satisfy the demands of their consumers and supply the surplus to other nations in efficient and economical ways. As the laws relating to trade and commerce can influence the economic, political and social aspects of an individual and society, the Developing and Developed nations considered that the regulation of trade, required some well-developed organization. All the visionary ideas, goals and experiences from earlier discussions took place at the erstwhile GATT, from 1986–1994. During the Uruguay Round, based on the preliminary work and based on formative discussions, it led to the formation of the WTO. This organisation, the WTO began to function, on 1st January 1995. The discussion in this chapter briefly deals with cross border trade issues, the background information preceding the WTO trading system and then formally in the context of the WTO. Within these discussions, a brief reference to the WTO institutional set up, policy mechanisms, promotion of free trade among the Member State and the links established through provisions that forms part of one trading system is covered.

Free trade promotes private entrepreneurship, hence allows each country to specialize in producing the product in regard to which it has a comparative advantage. The free trade market system promoted by the WTO covers both industrial and agricultural sectors of any economy. Along with the promotion of free trade as a key trading principle, creation and generation of wealth by the nations, through procedural checks and balances is a matter of shared concern between the Member States. These concerns are derivatives of fair trade principles. The discussion in this chapter also attempts to figure out historical link for the present day challenges in the matters of trade across borders and between Developed, Developing and the Less Developed countries. The past connection with the issues lead to the formation of the WTO objectives. The study of subsidies is one such key issue. The area of discussion in the chapter briefly touches the specific issue of subsidies which is one of the key subject area of the international trading system based on the principle of free trade.

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next chapter Subsidies in International Trade from the WTO Perspective

Beinhocker (2007), p. 269.

Robert Selow quoted in Eric Beinhocker’s book (Beinhocker 2007, p. 41).

R. Selow referred to in, “Technology and International Differences in Growth Rates.” Fagerberg (1994), pp. 1147–1175.

TRIPS:- “Agreement on Trade-Related Aspects of Intellectual Property Rights.” The TRIPS agreement is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April, 1994.

Srinivasan (2009), p. 9.

Srinivasan (2009), pp. 9–10.

Srinivasan (2009), p. 10.

United Nations Conference on Trade and Employment. Final Act and the related Documents. New York. April, 1948 https://www.wto.org/english/docs_e/legal_e/havana_e.pdf.

Srinivasan (2009), pp. 10–11.

Mavroidis (2005), p. 3.

Bretton Woods Conference, officially called the United Nations Monetary and Financial Conference was held on July 1–22, 1944. The Bretton Woods system was the world’s most recent experiment with a fixed exchange rate regime. Although it was originally designed as an adjustable peg, it evolved in its heyday into a de facto fixed exchange rate regime. The architects of the Bretton Woods system wanted a set of monetary arrangements that would combine the advantage of the classical gold standards (i.e. exchange rate stability) with the advantage of floating rates (i.e., independence to pursue national full employment policies). They sought to avoid the defects of floating rates (destabilising speculation and competitive beggar thy-neighbor devaluations).Bordo and Eichengreen (1993), pp. 3–5. http://www.nber.org/chapters/c6867.

Developing and Developed nations based on the WTO classification.

Bossche (2008), p. 77.

World Trade Report (2007), p. xxx. www.wto.org.

WTO Agreement Art II. (2).

Article XI, 1.The contracting parties to the GATT 1947 as of the date of entry into force of this Agreement and the European Communities, which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO.

2. The least-developed countries recognised as such by the United Nations will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs or their administrative and institutional capabilities.

WTO Agreement Art XVI.4.

Matsushita et al. (2003), p. 12.

Ehlermann & Ehring (2005), pp. 51–75.

In fact, within the WTO framework, there is no specific agreement dealing with the environment. The objectives of Sustainable Development and Environmental Protection are stated in the preamble to the Marrakesh Agreement establishing the WTO. The Doha Round of the WTO negotiations has linked certain aspects of trade with the environment and also assigned some task to a regular environment committee.

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), is an international agreement administered by the World Trade Organization that sets down minimum standards for many form of intellectual property regulation. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

Article 3.2 of the DSU: The Dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The members recognise that it serves to preserve rights and obligations of members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.

Article 26, Vienna Convention on the Law of Treaties. Pacta sunt servanda.

In the case of United States–Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, (see page no 17, of the AB report) AB in the matter before it, concerning the interpretation of Article XX by the Panel, in relation to the baseline establishment rule applied by the US for the conservation of natural resources, stated, the general rule of interpretation has attained the status of a rule of customary or general international law. As such, it forms part of the customary rules of interpretation of public international law which the Appellate Body has been directed, by Article 3(2) of the DSU, to apply in seeking to clarify the provisions of the General Agreement and the other covered agreements of the Marrakesh Agreement Establishing the World Trade Organization. This direction reflects a measure of recognition that the General Agreement is not to be read in clinical isolation from public international law. The Appellate Body observes that the Panel Report failed to take adequate account of the words actually used by Article XX in several paragraphs.

See preamble of the WTO.

Gabrielle (2002), pp. 753–814.

Abbott et al. (2006), p. 188.

Value-based here means, that; the concept and realization of human rights are relative for the different societies.

Gabrielle (2002), pp. 753–814.

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, nothing in this agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

necessary to protect public morals;

necessary to protect human, animal or plant life or health;

relating to the importations or exportations of gold and silver;

necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trademarks and copyrights, and the prevention of deceptive practices;

relating to the products of prison labour;

imposed for the protection of national treasures of artistic, historic or archaeological value;

relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production and consumption;

undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to the criteria submitted to the contracting parties and not disapproved by them or which is itself so submitted and not so disapproved;

involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non–discrimination;

essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the agreement shall be discontinued as soon as the conditions giving rise them have ceased to exist. The contracting parties shall review the need for this sub-paragraph not later than 30 June 1960.

In the case between, US and Brazil, WT/DS2/9, para 6.39, the Appellate body partly upheld the panel´s decision and directed modification to the rest. The Panel, referring to the Herring and Salmon case, stated that as the preamble of Article XX indicates, the purpose of including Article XX (g) in the General Agreement was not to widen the scope for measures serving trade policy purposes but merely to ensure that the commitments under the General Agreement, do not hinder the pursuit of policies aimed at the conservation of exhaustive natural resources. Para.6.40, the panel then proceeded to examine whether the baseline establishment methods can be linked to “primarily aimed at” achieving the conservation objectives of Gasoline rule.

Case between Malaysia and U.S: See WT/DS58/RW.

Appellate Body stated in its report, para 156, turning then to chapter XX, “we consider that it embodies the recognition on the part of WTO members, of the need to maintain a balance of rights and obligations between the right of a member to invoke one or another of the exceptions of Article XX, specified in paragraphs (a) to (j) on the one hand, and the substantive rights of the other members under the GATT 1994, on the other hand. Exercise by one Member of its rights to invoke an exception, such as Article XX (g) if abused or misused, will to that extent, erode or render naught the substantive treaty rights in, for example, Article XI:1, of other Members. Thus, a balance must be struck between the right of a Member to invoke an exception, under Article XX and the duty of that same Member to respect the treaty rights of the other members. To permit one member to abuse or misuse its right to invoke an exception would be effectively to allow that member to degrade its own treaty obligations as well as to devalue the treaty rights of other members.”

Sauve & Grasstek (2006), pp. 837–864.

Monoism maintains that national legal rules and international law rules or treaty obligations that a state has accepted can be directly applied.

In the case of dualism, international agreements are brought into a domestic legal system for implementation after harmonizing them with national law. This means that an act of parliament has been passed on the matter.

Hudec and Southwick (2002), p. 29. www.cambridge.org/9780521813198.

Neo-liberalism comprises two notions “neo” and “liberal” meaning free from government intervention. Adam Smith advocated the abolition of government in economic matters so that trade could flourish and first introduced liberalism in mid-1770. Sue L.T. Mc-Gregor, Janice Doull and Larry Fisk, “Neoliberalism, Microbes, and Peace: A human ecological perspective,” p. 1. http://www.kon.org/archives/forum/14-1/McGregor.html, forum paper.

Beinhocker (2007), p. 294.

Opportunity Cost:—Any decision that involves a choice between two or more options has an opportunity cost. Opportunity cost is useful when evaluating the cost and benefit of choices. By expressing the cost of one option in terms of forgone benefits of another, the marginal cost and marginal benefits of the options can be compared. www.netmba.com/econ/micro/cost/opportunity.

Gregory (2007), p. 28.

This theory was an improvement of Absolute advantage theory. In the WTO trading system absolute advantage is not relevant. For detail references see, www.wto.org. Also see, Krugman and Obstfed (2009), pp. 32–35.

Kindleberger & Lindert (1986), pp. 23–24.

Mankiw (2007), p. 48.

Mason (1926), pp. 63–93.

Södersten and Reed (1994), p. 18.

Irwin and O’Rourke (2011), p. 20. www.nber.org/papers/w17598.

Established in 1944 and named after the New Hampshire town where the agreements were drawn up, the Bretton Woods system created, an international basis for exchanging one currency for another. It also led to the creation of International Monetary Fund and the International Bank for Reconstruction and Development, now known as the World Bank. Stephey (2008).

The new international monetary order was conceived and then driven through by the United States at an international monetary conference at Bretton Woods, New Hampshire, in mid-1944, and ratified by the Congress in July, 1945.

Rothbard (2008), pp. 93–95.

The defects of a fixed exchange rate gold standard is the subordination of national monetary policies to the dictates of an external balance and the subjugation of the economy to international transmission.

Defects of the floating rate are, destabilising speculation and competitive beggar thy-neighbour devaluations.

Bordo and Eichengreen (1993), p. 5. http://www.nber.org/chapters/c6867.

Douglas (2012), pp. 2–3. www.nber.org/papers/w17749.

Douglas (2012), p. 4. www.nber.org/papers/w17749.

Douglas (2012), p. 3. www.nber.org/papers/w17749.

Douglas (2012), p. 8. www.nber.org/papers/w17749. The Smithsonian Agreement, hailed by President Nixon as the “greatest monetary agreement in the history of the world,” was even more shaky and unsound than the gold exchange standard of the 1920s or than Bretton Woods. For once again, the countries of the world pledged to maintain fixed exchange rates, but this time with no gold or world money to give any currency backing. Furthermore, many European currencies were fixed at undervalued parities in relation to the dollar; the only US concession was a puny devaluation of the official dollar rate to $38 an ounce. However, while much too little and too late, this devaluation was significant in violating an endless round of official American pronouncements, which had pledged to maintain the $35 rate forever more. Now at last the $35 price was implicitly acknowledged as not being engraved on tablets of stone.

Article XV clause 1. The contracting party shall seek co-operation with the International Monetary Fund to the end that the Contracting Parties and the Fund may pursue a co-ordinated policy with regard to exchange questions within the jurisdiction of the Fund and the questions of quantitative restrictions and other trade measures within the jurisdiction of the contracting parties.

The working party took note of the findings of the IMF and recognised that the United States has found itself in a serious balance-of-payment situation which required urgent action. While noting the contrary views of the United States, the other members of the Working party considered that the surcharge, as a trade restrictive measure was in-appropriate given the nature of the United States balance-of-payments situation and the undue burden of adjustment placed upon the import account with consequent serious effects on the trade of other contracting parties.

Rochan and Rossi (2006), pp. 1–15.

The exchange rate of a currency is divided into two categories, fixed and flexible. In a purely fixed exchange rate regime, economic activity adjusts to the exchange rate. In a purely floating regime, the exchange rate is a reflection of economic activity.

Argentina-Measures Affecting Imports of Footwear Textiles Apparel and Items, WT/DS56/AB/R, para 84–85. The only provision of the WTO Agreement that requires consultations with the IMF is Article XV: 2 of the GATT 1994.This provision requires the WTO to consult with the IMF when dealing with “problems concerning monetary reserves, balances of payments or foreign exchange arrangements…”As in the WTO Agreement, there are no provisions in the agreement between the IMF and the WTO that require a panel to consult with the IMF in a case such as this. Under Para 8 of this later agreement, in a case involving “exchange measures within the fund’s jurisdiction,” the IMF shall inform in writing the relevant WTO body (including dispute settlement panels)…whether such measures are consistent with the articles of agreement of the fund. Evidently, the IMF has not been authorised to provide its views to a WTO dispute settlement panel on matters not relating to exchange measures within its jurisdiction, unless it is requested to do so by the panel under Article 13 of the DSU.

A country’s exchanged rate regime under which the government or central bank ties the official exchange rate to another country’s currency.

Macrory et al. (2005a), p. 343.

Article 24.1, “At all stages of the determination of the causes of a dispute and of dispute settlement procedures involving a Less-Developed country member, particular consideration shall be given to the special situation of Less-Developed country members. In this regard, the member shall exercise due restraint in raising matters under these procedures involving a Less-Developed country member. If nullification or impairment is found to result from a measure taken by a Less-Developed country member, complaining parties shall exercise due restraint in asking for compensation or seeking authorization to suspend the application of concessions or other obligations pursuant to these procedures.”

United States–Subsidies on Upland Cotton WT/DS/267/R, para 512. The Panel in this case explicitly mentioned that at all the stages of the determination of the cause of dispute…particular consideration should be given to the special situation of Less Developed country.

Kasteng et al. (2004), pp. 15–21. www2.jordbruksvert.se/webdav/files/SJV/trycksaker/pdf.

The World Bank uses the following categories: low-income countries, lower middle income countries, upper middle income countries or high income countries.

According to the FAO trade statistics, the Developing countries can be classified in the following categories: Net Agricultural-Exporters (NAEX), Net Agricultural-Importers (NAIM), and Net Food Importers (NFIM) Net Food Exporters (NFEX).

The United Nations system defines several categories of Developing countries according to common characteristics: Less-Developed countries, land-locked Developing countries, small island Developing countries, Transition markets and Low-income food deficit countries.

The UNDP uses the human development index to classify the countries into the following groups: low human development, medium human development or high human development.

The United Nations also group the countries according to their geographic location in different regions: Latin America and the Caribbean, Sub-Saharan Africa, East Asia and the Pacific, Europe and Central Asia, the Middle East and North America and South America.

The term “checks and balances” signify, the regulatory restrictions on the nations that have prevailing potentials in the market economies because of technological advancement.

Krishna et al. (2010), pp. 5, 11, 12. http://www.nber.org/papers/w16322.

Krugman and Obstfed (2009), p. 208.

Drezner (2006), p. 1. ISBN 0876093497 www.cfr.org/content/publications/attachments/CPCTrade.

Footer (2006), p. 183.

Fair trade concepts such as, equitable distribution of resources, reducing poverty by creating more trading opportunities, creating fair chance for the development of Developing and Less Developed countries, can be defined in the light of the objectives mentioned in the preamble of the WTO such as ‘raising standards of living, ensuring full employment, expanding production of trade in goods and services and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different level of economic development. Recognising that there is need for positive efforts to ensure that developing countries and especially the least developed countries, secure a share of growth with the needs of their economic development.’

Article III of the GATT 1994. 1) The members recognize that internal taxes and other internal charges, and laws regulations and requirements affecting the internal sale, offering or sale, purchase, transportation, distribution or use of products, and internal quantitative regulations, requiring the mixture, processing or the use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production.

2) The products of the territory of any member imported into the territory of any other member shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products. Moreover, no member shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in para 1.

The parties to this agreement, Recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.

Recognizing further that there is need for positive efforts designed to ensure that Developing countries and especially the Less-Developing countries among them, secure a share in the growth in international trade commensurate with the need of their economic development.

GATT Article I. (1) Provides for WTO members to accord Most-Favoured-Nation treatment to “like products” of other WTO members regarding tariffs, regulations on exports and imports, internal taxes and charges, and internal regulations. In other words, “like products” from all WTO members must be given the same treatment as the most advantageous treatment to the product of any state.

Should an importing country accord differential treatment to “like products” of the exporting country, i.e., by setting different tariff rates, it would be clearly a violation of GATT Article I.(1).However, Article I.(1) violations can also occur even when there is no ostensible discrimination against the product of a Most-Favoured Nation, such as when an importing country accords differential treatment among products that are considered to be “like products,” which ultimately results in the de-facto discrimination against products of specific contracting parties. For instance, a country may apply a different tariff rate to a particular variety of raw coffee bean, but if that variety and other varieties of coffee beans were considered to be like products using criteria such as consumer tastes and end-use, the differential tariffs may have an effect on imports from different countries.

As early as in 1947–48 at the Havana Conference, some Developing countries challenged the assumption that trade liberalisation on an MFN basis would automatically lead to their growth and development. Source www.wto.org/english/tratop_e/devel_e/sem01_e/gibbs_e.doc.

For reference see, www.wto.org/english/tratop_e/dev_special_different.

Macrory et al. (2005b), p. 1540.

Macrory et al. (2005b), p. 1542, also see, www.wto.org/english/tratop_e/dev_special_different.

Preamble of the WTO, “The parties to this Agreement, recognizing that their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large steadily growing volume of real income and effective demand, and expanding the production of trade in goods and services …. Recognizing further that there is a need for positive efforts designed to ensure that developing countries, and especially the least developed countries among them, secure a share in the growth of international trade commensurate with the needs of their economic development. Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations.”

The term state-aid is used in the EU.

Luca (2009), p. 149. “Unlike in the WTO law, there is only one provision featuring a definition of State aid in the EC. Article 87(1) EC regulates ‘any aid granted by the State or through State resources in any form whatsoever.”

There are several agreements annexed to the Marrakesh Agreement signed in 1994. Agreement on Subsidies and Countervailing Measures is covered under Annex 1A, covering Multilateral Agreements on Trade in Goods. SCM Agreement: Subsidies and Countervailing Measures Agreement. This agreement is based on outlines determining the justifiable and non-justifiable use of subsidies. The provisions in this agreement classify subsidies as, prohibited, actionable and non-actionable, and restricts the use of subsidies in order to avoid trade distortion.

Footer (2006), p. 3.

For non-actionable subsidies see Article 8 of the SCM Agreement. Article 8 is obsolete since 1999.

Luca (2009), p. 22.

For details see, Article 3 of the SCM Agreement.

Article 1.1(b) of Subsidies and Countervailing Measures Act.

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Title: Regulating Free Trade from the WTO Perspective
Author: Gurwinder Singh
Publisher: Springer International Publishing
Book: Subsidies in the Context of the WTO's Free Trade System
Print ISBN: 978-3-319-62421-1

Electronic ISBN: 978-3-319-62422-8

Copyright Year: 2017
DOI: https://doi.org/10.1007/978-3-319-62422-8_1