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1、The Institutional Framework&Basic Principles of the WTO,Edwini Kessie(edwini.kessiewto.org)Counsellor,Council and Trade Negotiations Committee Division,WTO,Institutional Framework,GATT Years,1947,1948,1949,1950,60-61,64-67,73-79,86-93,1994,Jan 1,96,Havana Conference(ITO)1st Round The GATT enters int
2、o force2nd Round:Annecy3rd Round:Torquay4th Round:Geneva5th Round:“Dillon Round”6th Round:“Kennedy Round”7th Round:“Tokyo Round”8th Round:“Uruguay Round”Marrakesh ConferenceWTO enters into forceThe GATT(1947)no longer in force,1956,OBJECTIVES,Raising Standards of living,Ensuring full employment,Ensu
3、ring large and steadily growing volume of real income and effective demand,Expanding the production of and trade in goods and services,while allowing for the optimal use of the worlds resources(sustainable development),seeking both to protect and preserve the environment and to enhance the means for
4、 doing so in a a manner consistent with their(the Parties to the Agreement)respective needs and concerns at different levels of economic development.,FUNCTIONS(1),Framework to facilitate the implementation,administration and operation of WTO Agreements,Framework to further the objectives of the WTO
5、Agreements,Forum for negotiations in matters dealt with under the WTO Agreements,FUNCTIONS(2),Forum for further negotiations(new rules and disciplines),Framework to facilitate the implementation,administration and operation of new agreements,FUNCTIONS(3),Framework to administer the Understanding on
6、Rules and Procedures Governing the Settlement of Dispute(DSU),Framework to administer the Trade Policy Review Mechanism(TPRM),MEMBERSOBSERVERSSECRETARIAT,MINISTERIAL CONFERENCE,GENERAL COUNCIL,HORIZONTAL ISSUES,GOODS,SERVICES,INTERLLECTUAL PROPERTY,PLURILATERAL AGREEMENTS,MINISTERIAL CONFERENCEThe h
7、ighest authority in the WTOMeats at least once every two years:1996:Singapore1998:Geneva1999:Seattle2001:Doha2003:Cancun2005:Hong Kong,China,GENERAL COUNCILConducts the functions of the MINISTERIAL CONFERENCE when the Conference is not in session.,PANELS,APPELLATE BODY,GENERAL COUNCIL,DISPUTE SETTLE
8、MENT BODY(DSB),TRADE POLICY REVIEW BODY(TPRB),COUNCIL FOR TRADE IN GOODS,COMMITTEESMarket AccessAgriculture Sanitary and Phytosanitary measures(SPS)Technical Barriers to trade(TBT)Subsidies and countervailing measures(SMC)Antidumping(ADP)Safeguards(SG)Customs valuation(VAL)Rules of origin(RO)Import
9、Licensing procedures(LIC)Trade-related investment measures(TRIMs)Textile Monitoring BodyWORKING PARTY on State Trading Enterprises,PLURILATERAL COMMITTEEInformation Technology Agreement(ITA),COUNCIL FOR TRADE IN GOODS(CTG)Oversees the functioning of Annex 1A,COUNCIL FOR TRADE IN SERVICES,COMMITTEEST
10、rade in Financial servicesSpecific commitments WORKING GROUPSDomestic RegulationGATS Rules,COUNCIL FOR TRADE IN SERVICESOversees the functioning of Annex 1B,COUNCIL FOR TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS(TRIPS)Oversees the functioning of Annex 1C,TRIPS COUNCIL,COMMITTEES AND WORKI
11、NG GROUPS REPORTING DIRECTLY TO THE GENERAL COUNCIL,COMMITTEESTrade and environmentTrade and developmentSub-committee on Least-developed countriesRegional Trade Agreements Balance-of-payment(BOP)restrictionsBudget,finance and administration(BFA)WORKING GROUPS(PARTIES)AccessionsWORKING GROUPSTrade an
12、d investmentTrade and competition policyTransparency in Government ProcurementTrade,Debt and FinanceTrade and Transfer of Technology,PLURILATERAL COMMITTEESMonitoring of the Plurilateral Agreements(initially negotiated during the Tokyo Round),PLURILATERAL COMMITTEESTrade in civil aircraftsGovernment
13、 Procurement(GPA),WTO Years,SingaporeGenevaSeattleDohaCancun,Trade and InvestmentTrade and Competition PolicyTrade FacilitationTransparency in government procurementInformation Technology Products(ITA),Electronic commerce,Debt and FinanceTransfer of technology,Hong Kong,Doha,Doha Development Agenda:
14、Work Programme,Implementation(12)Agriculture(13-14)Services(15)NAMA Market Access for Non-Agricultural Products(16)TRIPS(17-19)Trade and Investment(20-22)Trade and Competition Policy(23-25)Transparency in Government Procurement(26)Trade Facilitation(27)Rules(28-29)Dispute Settlement Review(30)Trade
15、and Environment(31-32)Electronic Commerce(34)Small Economies(35)Trade,Debt and Finance(36)Trade and Transfer of Technology(37)Technical Cooperation and Capacity Building(38-41)Least-Developed Countries(42-43)Special and Differential Treatment(44),Marrakesh Agreement Establishing the WTOAnnex 11A:Agr
16、eements on Trade in Goods(GATT 1994(GATT 1947+Uruguay Round Agreements and Decisions+)1B:GATS(Trade in Services)1C:TRIPS(Intellectual Property Rights)Annex 2:Dispute Settlement UnderstandingAnnex 3:Trade Policy Review MechanismAnnex 4:Plurilateral Agreements Other Ministerial Decisions and Declarati
17、ons,WTO Law,Final Act of the Uruguay Round Agreement establishing the WTO,Decision-Making Process,General Rule-Consensus Provisions on voting should consensus prove to be elusive.However,Members have not voted on any issue thus far.Informal processes Role in forging consensusTransparency and inclusi
18、veness Should the decision-making process be reformed?Cf.the Sutherland Report,Basic Principles,Basic Principles,Non-Discrimination PrincipleMFN treatmentNational Treatment Security and predictability of market accessIncreasing the participation of developing countries in the multilateral trading sy
19、stemFair trade possibility to respond to unfair trading practices such as dumping and subsidizationTransparency,MFN Treatment,No discrimination between like products/services originating in or destined for other WTO Members.Each trading partner gets immediately and unconditionally the best treatment
20、 given to any trading partner even if not a WTO Member,MFN Treatment a three-tier test,Whether the governmental measure at issue confers a trade advantage of the kind covered by Article I:1 of the GATT 1994Whether the products concerned are“like products”Whether the advantage at issue is granted imm
21、ediately and unconditionally to all like products originating in other WTO Members,MFN Treatment Trade Advantage,Panels and the Appellate Body have interpreted the term“advantage”broadly to encompass not only tax/customs advantages,but also laws,regulations and requirements that affect importation a
22、nd exportation and alter the scales of competition,MFN Treatment“Like Products”,Not defined in the GATT,but guidance provided by case lawIn Japan-Alcoholic Beverages,the Appellate Body likened the concept of“likeness”to an accordion,as it“stretches and squeezes in different places”Among the factors
23、which have been taken into account by panels are the following:the properties,nature and quality of the products the end-uses of the products consumers tastes and habits the(international)tariff classification of the products,MFN Treatment“Immediately and Unconditionally”,The words“immediately“and“u
24、nconditionally”have been interpreted broadly to mean that a Member cannot demand reciprocal treatment as a condition for extending MFN treatment Likewise,extension of MFN treatment cannot be made conditional on a Member having or passing a specific legislation or undertaking a certain action,MFN Tre
25、atment-Exceptions,GATT Art.I:2-4(Historical Preferences)GATT Art.IV(c)(Cinematographic Films)GATT Art.XX(General Exception)GATT Art.XXIV:3(Frontier Traffic)GATT Art.XXIV:5(Free-Trade Area and Customs Unions)GATT Art.XXI(Security Exception)“Enabling Clause”(1979 Decision)Marrakesh Agreement Art.IX:3(
26、Waiver),MFN Treatment-GATS,Art II:1 of the GATSFor any measure covered by the GATS,each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other coun
27、try.The Appellate Body held in EC Bananas III that the obligation imposed by Article II is unqualified,and does not exclude de facto discrimination.,MFN Treatment Exceptions under GATS,GATS Art.II:2(Specific List of MFN Exemptions)GATS Art.II:3(Advantages to Adjacent Countries)GATS Art.V(Economic In
28、tegration)GATS Art.V bis(Labour Market Integration)GATS Art.XIV(General Exception)GATS Art.XIV bis(Security Exception)Marrakesh Agreement Art.IX:3(Waiver),MFN Treatment-TRIPS,Art 4 of the TRIPS AgreementWith regard to the protection of intellectual property,any advantage,favour,privilege or immunity
29、 granted by a member to the nationals of any other country shall be accorded immediately and unconditionally to the national of all other MembersExceptions:Art.4(a)-(d)of the TRIPS Agreement;TRIPS Art.73(Security Exception)and Marrakesh Agreement Art.IX:3(Waiver),National Treatment,As a general rule
30、,imported products must not be discriminated against vis-vis domestic productsMembers cannot impose higher internal taxes or more burdensome obligations on imported“like”productsDeterminants of likeness-the properties,nature and quality of the products;the end-uses of the products;consumers tastes a
31、nd habits and the tariff classification of the products None of these elements is dispositive,MFN Treatment v.National Treatment,Non-Discrimination Non-Discriminationat the Border:Inside Border:Equal Treatment between Equal TreatmentWTO Members Productsbetween Imported and Domestic GoodsArticle I GA
32、TTArticle III GATT(Article II GATS(Article XVII GATSArticle IV TRIPS)Article III TRIPS),Internal v.Border Measure,Difficult at times to distinguish between the two:would an import ban enforced at the border be subject to Article III or XI of the GATT 1994?Basic ruleApplied at the borderApplied insid
33、e the borderArticle XI GATTArticle III GATTorArticle III GATT,Article III:2 of the GATT 1994 First Sentence tax discrimination of like products,The products of the territory of any Member imported into the territory of any other Member shall not be subject,directly of indirectly,to internal taxes or
34、 other internal charges of any kind in excess of those applied,directly or indirectly,to like domestic productsIn Canada Periodicals,it was held that the following conditions have to be satisfied:(i)whether the imported and domestic products are like products;and(ii)whether the imported products are
35、 taxed in excess of the domestic products,Article III:2 of the GATT 1994 Second Sentence directly competitive or substitutable products,Article III:2:Moreover,no Member shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the princip
36、les set forth in paragraph 1.Ad Art.III:2:A tax conforming to the requirements of the first sentence of para.2 would be considered to be inconsistent with the provision of the second sentence only in cases where competition was involved between,on the one hand,the taxed product and,on the other hand
37、,a directly competitive or substitutable product which was not similarly taxed.,Article III:2 of the GATT 1994 Second Sentence directly competitive or substitutable products,Held in the Japan-Alcoholic Beverages II case that the following elements have to be satisfied:Whether the imported and domest
38、ic products are directly competitive or substitutableWhether these products are not similarly taxedWhether dissimilar taxation is applied so as to afford protection to domestic producers,Article III:4 of the GATT 1994 Discriminatory domestic rules/regulations,“The products of the territory of any co
39、ntracting party imported the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws,regulations and requirements affecting their internal sale,offering for sale,purchase,transportation,dist
40、ribution or use”.,Article III:4 of the GATT 1994 Discriminatory domestic rules/regulations,Held in the Korea-Beef that the following elements have to be satisfied:Whether the measure at issue is a law,regulation or requirement covered by Article III:4 GATTWhether the imported and domestic products a
41、re like productsWhether the imported products are accorded less favourable treatment,Exceptions to the National Treatment Principle under GATT,GATT Art.III:3(“Grandfathering”)GATT Art.III:8(a)(Government Procurement)GATT Art.III:8(b)(Production Subsidies)GATT Art.III:9(Prejudicial effect of internal
42、 price control measures)GATT Art.III:10 and Art.IV(Cinematographic films)GATT Art.XX(General Exception)GATT Art.XXI(Security Exception)Marrakesh Agreement Art.IX:3(Waiver),National Treatment Principle under the GATS and TRIPS,As a general rule,foreign goods,services and service providers,as well as
43、IPR holders must not be discriminated against vis-vis domestic goods,services,and services providers,as well as IPR holdersUnlike the GATT,NT principle flexible under GATSArticle XVII:1 of the GATS:In the sectors inscribed in its Schedule,and subject to any conditions and qualifications set out ther
44、ein,each Member shall accord to services and service suppliers of any other Member,in respect of all measures affecting the supply of services,treatment no less favourable than that it accord to its own like services and service suppliers.,National Treatment Principle under the GATS,Art XVII:2:A Mem
45、ber may meet the requirement of para.1 by according to services and service suppliers of any other Member,either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliersArticle XVII:3 of the GATS:Formally identical or formally dif
46、ferent treatment shall be considered to be less favourable if its modified the conditions of competition in favour of services or service suppliers of the Member compared to like services of service suppliers of any other Member,Exceptions to the National Treatment Principle under the GATS,GATS Art.
47、XIV(General Exception)GATS Art.XIV bis(Security Exception)GATS Art.XXI(Modifications of Commitments)Marrakesh Agreement Art.IX:3(Waiver),Binding of Commitments/Concession,Members commit themselves not to raise duties or make concessions more restrictive than indicated in their schedules of commitmen
48、ts/concessionsArt.II:1(a)of the GATT:Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this AgreementExceptions to the“binding”principle are the follo
49、wing:GATT Art.II:1(b)(Other Duties and Charges-ODCs)GATT Art.II:2(Internal Tax,Anti-Dumping or Countervailing Duty,Customs Fees)GATT Art.XXVIII(Modifications of Concessions)Marrakesh Agreement Art.IX:3(Waiver),Binding of Commitments/Concession,Art XX:1 of the GATS:Each Member shall set out in a Sche
50、dule the specific commitments it undertakes under Part III of this Agreement(GATS).With respect to sectors where such commitments are undertaken,each Schedule shall specify terms,limitations and conditions on market access Art XX:3:Schedules of specific commitments shall be annexed to this Agreement
