Europe\u27s Evolving Regulatory Strategy for GMOs --- The Issue of Consistncy with WTO Law: of Kine and Brine

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ( GMOs ) be judged by a World Trade Organization ( WTO ) adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular perception, if WTO law is properly interpreted, GMO-related measures, where non-discriminatory against other WTO Members, can pass the test of consistency with even the most stringent of relevant WTO rules

A Survey of the Literature on the WTO Dispute Settlement System

This paper surveys the law and economics literature on WTO dispute settlement. As a background, we first briefly lay out main features of the legal framework, and discuss possible roles of a dispute settlement mechanism. We then discuss the two main themes in the empirical literature on dispute settlement: (i) the determinants of participation by members as complainants, respondents and third parties; and (ii) the role of the DS system for the settling of disputes. The paper finally points to a number of areas that are in need of further research.WTO; Dispute Settlement; DSU

The Permissible Reach of National Environmental Policies

Trading nations exchange tariff concessions in the context of trade liberalizing rounds. Tariffs, nonetheless, are not the only instrument affecting the value of a concession. Domestic instruments affect it as well, but public order is not negotiable, and, consequently, is not scheduled. Public order is unilaterally defined, but must respect the default rules concerning allocation of jurisdiction which are common to all WTO Members and bind them by virtue of their appurtenance to the international community. In this paper, we focus on the interaction between trade and environment. The purpose of this study is to highlight how these rules and the GATT/WTO jointly determine the scope for unilateral environmental policies for WTO Members. In the study we examine the relevant multilateral framework dealing with this issue, as well as the relevant GATT and WTO case-law. We also briefly present the jurisdictional default rules in Public International Law. As a means of focusing the discussion, we consider a series of scenarios, partly building on factual aspects of cases that have already been brought before the WTO. These scenarios are intended to isolate issues of specific interest from a policy point of view. For each scenario we then seek to determine what would the outcome be, in case WTO adjudicating bodies were to explicitly take account of the default rules concerning allocation of jurisdiction, something which has not been done to date. Our main conclusions are two-fold: on occasion, the outcome would be different, had WTO panels observed the default rules concerning allocation of jurisdiction; more generally, the default rules can help us understand the limits of some key obligations assumed under the WTO. Crucially, absent recourse to the default rules concerning allocation of jurisdiction, one risks understanding non-discrimination (the key GATT-obligation) as an instrument aimed to harmonize conditions of competition across markets, and not within markets, as the intent of negotiators has always been.Trade and Environment; WTO

The World Trade Organization's agreement on government procurement : expanding disciplines, declining membership?

The authors analyze the new Government Procurement Agreement (GPA) that was negotiated between a subset of General Agreement on Tariffs an Trade (GATT) members in the Uruguay Round, focusing especially on the expansion of coverage to services and on the strengthening of enforcement mechanisms. Coverage objective were substantially achieved, although commitments containmany exceptions for services. The transparency of signatories'procurement practices was enhanced and enforcement provisions were strengthened, particularly by the introduction of a bid-protest challenge mechanism, which allows private parties (firms) to invoke the Agreement before national courts. (A potential problem: domestic courts could produce divergent interpretations of the GPA). Unlike most of the other Tokyo Round codes - for example, the agreements on technical barriers to trade (standards), import licensing, customs valuation, subsidies, and antidumping - the GPA could not be"multilateralized."Its disciplines apply only to World Trade Organization (WTO) members that have signed it. Public procurement represents a major source of demand for goods and services in most countries. Getting domestic procurement policies"right"can therefore have major effects on welfare. And improving developing countries'access to global procurement markets could help induce governments to adopt multilateral rules, if those could be shown to be in their interests. The authors explore why only a limited number of countries have signed the GPA. They suggest the pursuit of tariffication as one avenue through which the Agreement might be expanded to cover all WTO members. In the process, the GPA could be improved economically by eliminating current provisions that allow for measures with quota-like effects, and by weakening incentives to seek"absolute"sector-by-sector reciprocity.Rules of Origin,Corruption&Anitcorruption Law,Public Sector Corruption&Anticorruption Measures,Decentralization,Economic Theory&Research,Corruption&Anitcorruption Law,Public Sector Corruption&Anticorruption Measures,Rules of Origin,Economic Theory&Research,Environmental Economics&Policies

Burden of Proof in Environmental Disputes in the WTO: Legal Aspects

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding the required amount of evidence (the burden of persuasion); and second, such errors, as well as errors concerning the determination of the party to carry the burden of providing this evidence (the burden of production), have been committed in disputes submitted under the TBT/SPS Agreements. These errors largely seem attributable to the general absence of methodology regarding the interpretation of some key substantive provisions featuring in the three Agreements.Burden of Proof; Burden of Production; Burden of Persuasion; WTO; Environment

Economic development, competition policy, and the World Trade Organization

At the recent World Trade Organization (WTO) ministerial meeting in Doha, Qatar, WTO members called for the launch of negotiations on disciplines relating to competition based on explicit consensus on modalities to be agreed at the fifth WTO ministerial meeting in 2003. WTO discussions since 1997 have revealed little support for ambitious multilateral action. Proponents of the WTO antitrust disciplines currently propose an agreement that is limited to"core principles"-nondiscrimination, transparency, and provisions banning"hard core"cartels. The authors argue that an agreement along such lines will create compliance costs for developing countries without addressing the anticompetitive behavior of firms located in foreign jurisdictions. To be unambiguously beneficial to low-income countries, any WTO antitrust disciplines should recognize the capacity constraints that prevail in these economies, make illegal collusive business practices by firms with international operations that raise prices in developing country markets, and require competition authorities in high-income countries to take action against firms located in their jurisdictions to defend the interests of affected developing country consumers. More generally, a case is made that traditional liberalization commitments using existing WTO fora will be the most effective means of lowering prices and increasing access to an expanded variety of goods and services.Markets and Market Access,Economic Theory&Research,Labor Policies,Environmental Economics&Policies,ICT Policy and Strategies,Environmental Economics&Policies,Economic Theory&Research,TF054105-DONOR FUNDED OPERATION ADMINISTRATION FEE INCOME AND EXPENSE ACCOUNT,ICT Policy and Strategies,Access to Markets

The International Dimension of the Antitrust Practice in Poland, Hungary and the Czech Republic

This paper analyses how the competition authorities in the Czech republic, Poland and Hungary (CPH) have dealt with the interface between trade and competition in their actual practice. The following findings emerge (i) there has not been any significant conflict in the allocation of jurisdiction between CPH on the one hand and the EU on the other hand. This may however be due to a lack of integration between these countries. (ii) the definition of the relevant geographic market suffers from significant shortcomings in each country under review with a general bias in favour of narrow market definition. Problems are most severe in the Czech republic. (iii) Anti-trust agencies in all three countries have attempted to advocate competition in the formulation of trade policy. Developments regarding the independence of the agencies is however mixed. There are some worrying signs that the Polish agency has become less independent whereas the Hungarian agency has probably become even more independent (iv) anti-trust agencies in all three countries could indeed be pursuing objectives of industrial policy in the exercise of merger control towards foreign firms. The situation is most severe in Poland where the suspicion arises that profitable market positions have been auctioned off to foreign buyers in exchange for commitments which are unrelated to the competitive situation.antitrust; transition

Antitrust-based remedies and dumping in international trade

The authors explore the possibility of government's seeking to agree to apply competition policy based considerations and disciplines in addressing unfair-trade allegations before turning to"standard"antidumping remedies. The premise of proponents of antidumping actions is that the existence of market power in exporter's home markets, or potential market dominance in the importing (host) market, is an important source of perceived"unfairness."But antidumping authorities do not investigate the existence of such situations. The authors propose that allegations of dumping first be investigated by competition authorities to determine the contestability of the relevant markets. Their proposal does not involve harmonization of competition laws. All that would change from the status quo is that a necessary condition for an antidumping action is that competition authorities find that the exporting firm's home market is not contestable, and conclude that no remedial action is possible through the application of competition law. Ideally, agreement along these lines would be sought in the multilateral (GATT) context, but bilateral or regional trade agreements could also be concluded. For example, European Union cooperationor association agreements might be extended along the lines proposed.TF054105-DONOR FUNDED OPERATION ADMINISTRATION FEE INCOME AND EXPENSE ACCOUNT,Economic Theory&Research,Environmental Economics&Policies,Access to Markets,Markets and Market Access

The Modernisation of EU Competition Policy : Making the Network Operate

This paper does not seek to evaluate whether decentralisation of the implementation of Art.81 ECT is desirable but simply analyses how the network of enforcers envisaged in the White Paper would operate. We identify two issues. We observe that in the proposed framework, simultaneous enforcement by several authorities is likely to occur and that each member states will have little incentive to take into account in its decision the interests of other member states. We show that such system of enforcement can have a "disintegrating effect", to the extent that it does not allow for a balancing between positive and negative net benefits across member states. We suggest that in order to avoid these effects, some co-ordination between the members of the network should be organised. In particular, we advocate the re-emergence in the intra-EC context of a 'positive comity' obligation and we suggest that a formal procedure for co-ordination between different institutions should be laid down (as in the US). We further observe that the accountability of antitrust authorities could deteriorate in the White Paper era. In order to address this concern, we suggest that institutional constraints like accountability and independence standards should be imposed on member states. Finally, drawing on the US experience with multiple enforcement, we argue that the role of the Commission should be as much to manage regulatory innovation (arising from the enforcement activity of member states) as to resolve conflict.antitrust; institution design

Linking competition and trade policies in Central and Eastern European countries

The authors explore options for Central and Eastern Europe (CEE) governments to make competition law enforcement more sensitive to trade and investment policy, thereby supporting liberal trade policy. The competition laws of these countries tend to resemble European Union (EU) competition disciplines (Article 85 - 86 of the Treaty of Rome), but give competition authorities great scope for discretion in interpreting the relevant statutes. Much can be done through appropriate wording of criteria and implementation guidelines within the framework of existing legislation to subject trade policy to competition policy scrutiny. A liberal trade policy and active enforcement of competition laws will be crucialnot only for national welfare, but also for eliminating the threat of contingent protection by EU firms. When CEE countries face antidumping threats or action from EU countries, the authors suggest that they seek a link between competition law enforcement and antidumping investigation in the context of the association agreements with the European Union. That is, the European Commission could be asked to apply competition policy criteria in antidumping investigations against products originating in CEE countries, ensuring that there is a threat to competition, not just a threat to a European Union competitor. This treatment could be sought informally during the transitional period. Generally, since the CEE countries have adopted competition legislation comparable to that of the European Union, it seems safe to assume that if they enforce their competition laws vigorously, EU consistent minimum standards will be respected. Until the association agreements are fully implemented, it is important to reduce to a minimum the risk of being treated as an"unfair trader."Safeguard actions will remain possible until EU membership has been attained. But safeguard protection is more difficult to seek and obtain if there is only a weak case for arguing that Central and Easter European firms are benefiting from trade barriers, state aids, or various government maintained entry barriers.Environmental Economics&Policies,Economic Theory&Research,ICT Policy and Strategies,TF054105-DONOR FUNDED OPERATION ADMINISTRATION FEE INCOME AND EXPENSE ACCOUNT,Markets and Market Access