Friday, May 23, 2014

Who actually won and what will the measures to comply be?

Preliminary reactions coming in from the parties to the EU Seals dispute:

"The WTO confirmed the EU's right to ban seal products on moral grounds related to animal welfare and the way the seals are killed. It did, however, criticise the way the exception for Inuit hunts has been designed and implemented. 
The European Commission will review the findings on these exceptions to the ban and consider options for implementation. Overall, the Commission welcomes today's ruling as it upholds the ban imposed in reaction to genuine concerns of EU citizens."
“We are pleased that today’s decision by the WTO Appellate Body confirms what we have said all along, namely that the EU’s seal regime is arbitrarily and unjustifiably applied and is therefore inconsistent with the EU’s obligations. The WTO Appellate Body confirmed that the EU measure violates its international obligations and has ordered the EU to bring itself into compliance. We are currently reviewing the practical impact of the decision on the Atlantic and northern seal harvests.
Makes one wonder who actually won and what would the measures taken to comply with the decision be?

Compliance - the stage shifts in the EU Seals case

The EU Seal Products ban decision is out. You can find it here on the WTO website. Several brilliant expositions of the decisions in the IELP blog here.

Dissecting the decision in lay person's language it came to the conclusion that the EU ban on Seal products was justified under the "public morals" exception under Article XX(a) GATT. However, the exception given to Inuit communities of Greenland does not meet the requirements of the chapeau of Article XX. Hence, the Appellate Body recommended that the DSB request the European Union to bring its measure, found in this Report, and in the Canada Panel Report as modified by this Report, to be inconsistent with the GATT 1994, into conformity with its obligations under that Agreement. 

The focus now shifts to compliance. Apart from the "reasonable time" required, the issue would be what would amount to compliance of the AB decision? Removing the Inuit exception for Greenland or clarifying the exception itself?

Compliance is as big as the dispute itself!

Thursday, May 22, 2014

IPRs under the TPP Agreement

Negotiations on the Trans-Pacific Partnership Agreement are shrouded in secrecy. A report for UNITAID (hosted and administered by the WHO), presents an interesting assessment of ‘leaked’ provisions from TPP’s ambitious IPR agenda:

The report confirms that the TPP IPR chapter essentially consolidates and enhances the reach of TRIPS-plus provisions. It further suggests that TPP’s wide-reaching provisions on patents, by tilting the scales both in terms of substance and procedure in favour of patent applicants, may pose a threat to addressing issues relating to public health.

India has so far successfully resisted TRIPS-plus approaches under its Free Trade Agreements. The UNITAID report could be a useful tool to enhance domestic preparedness to understand and deal with such provisions.

Waiting for the Seals decision

For those waiting for the Seal dispute decision at the WTO, this piece of news in the Toronto Sun may interest you - Are lobsters next it asks?
"If the European Union is allowed to ban seal imports over "public morality", Environment Minister Leona Agluqqak worries something as pedestrian as lobster fishing might be next on its hit list.
Just days before the World Trade Organization is set to release its final ruling on the EU's seal ban, Agluqqak said the ban is a "slippery slope" and "very dangerous, globally." 
Last year, the WTO upheld the EU's ban by citing a controversial "public morality" clause.Last December, the WTO ruled that although the EU's ban on seal products did indeed break some trade rules, the ban was justified on the grounds of this "public morality" clause — which does not have to be shown to be justified, according to the WTO's rules. 
"It opens up the door for someone to come say: 'We don't like how you kill the lobster and on my moral grounds I'm now going to appeal,'" she said."
Article XX GATT defences and a slippery slope - that sounds familiar.

Monday, May 19, 2014

The flights take off once again - Subsidies dispute back into action

I thought the Boeing-Airbus Subsidies dispute at the WTO had reached the final stages of issues of compliance. 

I have blogged about the dispute here, here and here. But if Reuters is to be believed there is some fresh ammunition for the EU against alleged subsidies that US is giving to Boeing for its latest aircraft.
"The European Union is considering raising the pressure on the United States in the world's largest trade dispute by challenging tax breaks that encouraged planemaker Boeing (BA.N) to keep production of its latest jet in Washington state, people familiar with the matter said on Friday. 
The potential move would open a tense new phase in the decade-old formal trade dispute over aircraft industry aid, as Brussels and Washington argue about whether they have complied with rulings by the World Trade Organization, which in turn could set the tone for sanctions. 
Both the EU and United States claimed victory when the WTO ruled between 2010 and 2012 that billions of dollars of support for Boeing and European rival Airbus (AIR.PA), in a pair of cases spanning thousands of pages but lacking a final resolution."
The two subsidy cases highlight the role played by "Subsidies" in supporting local industry, the complexity of dispute settlement process at the WTO, the issue of compliance of decisions at the WTO as well as the efficacy of the process itself.

Over to the Article 21.5 compliance process to assess the new claim?

Friday, May 16, 2014

Seals, public morality and public opinion

We are all familiar with the EU Seal case at the WTO. One of the main pivots around which the case revolves at the dispute settlement proceeding is the applicability of Article XX GATT which deals with General Exceptions. More specifically it is the "public morals" clause which does not prevent States from adopting or enforcing any measures "necessary to protect public morals". I have blogged about it earlier herehere and here.

Came across this report of a survey conducted in Europe on what Europeans think about the seal trade ban using the public morals clause. The study titled "European Opinion on Animal Use and Trade" came to one of these conclusions:

• 75% of respondents saw the use of animals as acceptable, so long it is done in a way that protects animal welfare and sustainability of the resource   
• Half of respondents (50%) agreed that a country or group of countries should not be able to ban a commercial product from being imported based on moral grounds unless the evidence used is fact-based and agreed upon by a credible independent third-party organization.  
 • A majority of respondents (57%) agreed that if the EU’s ban on the import and sale of seal products is allowed to stand it could set a dangerous precedent for other animal products or natural resources   
• A majority of respondents felt that seal hunting was acceptable under in some circumstances compared with a third (33%) who felt that no form of seal hunting is acceptable.  
 • There was less division when it come to opinions about wild boar hunting: 82% of respondents supported wild boar hunting in some capacity while 14% were completely opposed. 
Of course, people will challenge the timing and veracity of this data study. But interesting to evaluate how such "evidences" of public opinion can influence the debate on what is "public morality". 

Also was quite interesting to note the significant difference between attitude towards seals vs a vis wild boars.

Tuesday, May 13, 2014

Another one bite's the dust!

I am thrilled to welcome another accomplished contributor to the blog - Thomas Sebastian.

Looking forward to some interesting posts now...

Friday, May 2, 2014

A GATS dispute after a long time

News of a WTO dispute concerning General Agreement on Trade in Services (GATS) after a very long time trickled in with Russia seeking consultation with EU on the "Third Energy Package".  More on that here.
"The measures concern the production, supply and transmission of natural gas or electricity, the alleged discriminatory certification requirements in relation to third countries in this sector and the requirement in respect of granting access to natural gas and electricity network capacity by transmission service operators. 
According to the Russian Federation, these measures are inconsistent with a number of obligations and specific commitments of the European Union and constitute an infringement of these obligations and commitments.
The inconsistencies alleged by Russia refer to the GATS (General Agreement on Trade in Services), the Agreement on Subsidies and Countervailing Measures and the Agreement Establishing the WTO."
Russia, being a new member of the WTO, seems to be initiating its forays into dispute settlement. The dispute being one relating to EU's commitments under GATS caught my attention. There are very few GATS disputes as compared to the other WTO Agreements.

Some chance of GATS jurisprudence evolving?