Appellate Body Report on EU-Biodiesel: Further Thoughts on The Issue of 'Particular Market Situation'

AbstractThis paper analyzes a number of economic and legal issues raised by the Appellate Body Report in the Thai–Cigarettes case. The paper suggests two improvements that could be made to Panel procedures; supports the Appellate Body's interpretation of Article XX(d) in the present case, which seems to discard an earlier mistaken approach to Article XX; and examines, in some detail, whether the Appellate Body's application of the ‘less favourable treatment’ component of GATT Article III:4 in this and other cases is consistent with its jurisprudence under GATT Article III:2 and TBT Article 2.1. From an economics perspective, the case is straightforward on its face. However, the Appellate Body's rigorous application of the ‘less favourable treatment’ principle might not survive a fuller market analysis in terms of policy impacts on conditions of competition. Further, while we agree with the rejection of Thailand's Article XX claim, we raise the question of whether a strict national-treatment rule may be an unwarranted constraint on policy where there is a clear trade-related external cost to address.

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Appellate Body Report, India – Additional and Extra-Additional Duties on Imports from the United States (WT/DS360/AB/R, adopted on 17 November 2008)

World Trade Review ◽

10.1017/s1474745609990309 ◽

2010 ◽

Vol 9 (1) ◽

pp. 239-263 ◽

Cited By ~ 1

Author(s):

PAOLA CONCONI ◽

Jan Wouters

Keyword(s):

United States ◽

Burden Of Proof ◽

The United States ◽

Central Point ◽

National Treatment ◽

Appellate Body Report ◽

Appellate Body ◽

Border Tax Adjustments ◽

National Governments

AbstractThis paper critically reviews the main findings of the Appellate Body in the case India – Additional and Extra-Additional Duties on Imports from the United States (India–Additional Import Duties). This ruling sheds light on the interplay between two core provisions of the GATT, namely Article II GATT (Schedules of Concessions) and III GATT (National Treatment on Internal Taxation and Regulation). Linked to this demarcation, the question on the allocation of the burden of proof was a central point of contention in this dispute. The ruling also establishes the principle that WTO Members are allowed to use border tax adjustments, as long as the tax imposed on imports does not exceed the domestic tax. We argue that this principle can help to reconcile the objectives of the WTO with those of national governments.

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