This article considers the role of scientific rationality in understanding statements of risk pro... more This article considers the role of scientific rationality in understanding statements of risk produced by a scientific community. An argument is advanced that, while scientific rationality does impose constraints on valid scientific justifications for restrictions on products and practices, it also provides flexibility in the judgments needed to both develop and apply characterizations of risk. The implications of this flexibility for the understanding of risk estimates in WTO and NAFTA deliberations are explored, with the goal of finding an intermediate ground between the view that science unambiguously justifies or rejects a policy, and the view that science is yet another cultural tool that can be manipulated in support of any decision. The result is a proposal for a dialogical view of scientific rationality in which risk estimates are depicted as confidence distributions that follow from a structured dialogue of scientific panels focused on judgments of evidence, evidential reasoning, and epistemic analysis.
In China–Audiovisuals, a series of Chinese restrictions on the importation and distribution of ce... more In China–Audiovisuals, a series of Chinese restrictions on the importation and distribution of certain ‘cultural’ or ‘content’ goods and services were found to violate GATT, GATS, and China's Accession Protocol. This paper reviews the definition of what is a ‘good’ (is a ‘film’ a good or a service?) and the extent to which GATT Article XX exceptions can justify violations under WTO instruments other than the GATT itself. We argue that trade volumes are unlikely to significantly rise as a result of this ruling as it does not affect China's right to keep out foreign films and publications if China finds them objectionable. However, foreign producers of audiovisuals can now gain potentially large economic rents, by being able to export and distribute their products into the Chinese market. Finally, we discuss the issue of the protection of cultural goods and review the recent literature on trade and culture that has put forward economic arguments to justify, under some conditio...
CHARNOVITZ: The Appellate Body's decision in the Tariff Preferences case demonstrates th... more CHARNOVITZ: The Appellate Body's decision in the Tariff Preferences case demonstrates the value of a second-level review of panel decisions. Notwith-standing the composition of the panel which was as highly qualified, balanced, and diverse as any panel could possibly be ...
... Especially before a particular court or tribunal, it is important to include all internationa... more ... Especially before a particular court or tribunal, it is important to include all international law binding between the parties as part of the applicable law, even if the jurisdiction of the adjudicator is limited to a given treaty (say, WTO covered agreements). ...
Depending on how one classifies market intervention, trade liberalization disciplines can be leni... more Depending on how one classifies market intervention, trade liberalization disciplines can be lenient or strict. Perhaps the most important distinction in this respect is that between government intervention labeled as a ' market access restriction' and that defined as 'domestic regulation'. Both the GATT and the GATS declare market access restrictions (such as import quotas or limitations on the number of service suppliers) to be, in principle, prohibited. In contrast, domestic regulations (such as internal taxes, health standards, and safety requirements) are treated with much more deference. They are, in essence, only prohibited when discriminatory or more trade restrictive than necessary. Notwithstanding these major legal consequences, the distinction between market access and domestic regulation remains unclear. Based on a recent WTO dispute condemning the United States for banning online gambling, this article is an attempt to clarify the distinction. Starting from broad similarities, it finds crucial differences in this respect between GATT and GATS. For both, however, the paper's basic point is that a domestic regulation should not be regarded as a market access restriction simply because it has the effect of banning certain imports. To do otherwise risks seriously undermining the regulatory autonomy of WTO Members beyond anything imagined by the drafters of the WTO treaty. * I am extremely grateful for comments and discussions with
An important, though oft neglected, distinction between multilateral treaty obligations separates... more An important, though oft neglected, distinction between multilateral treaty obligations separates obligations of a bilateral nature from those of the collective or erga omnes partes type. Multilateral obligations of the bilateral type can be reduced to a compilation of bilateral, state-to-state relations. They can be compared to contracts. Collective obligations, in contrast, cannot be divided into bilateral components. They are concluded in pursuit of a collective interest that transcends the individual interests of the contracting parties. The standard example of such obligations are those arising under a human rights treaty. In domestic law, collective obligations can be compared to criminal law statutes or even domestic constitutions. This essay examines the origins of the distinction between bilateral and collective obligations, as well as its major consequences, both in the law of treaties and the law on state responsibility. On that basis, a wider typology of multilateral treaty obligations is suggested. In the exercise, obligations arising under the World Trade Organization are used as a case study. The argument is made that WTO obligations remain essentially of the bilateral type; they are not collective in nature. by guest on
... As Alan Sykes put it, "The most effective mechanism to achieve such risk reduction is a ... more ... As Alan Sykes put it, "The most effective mechanism to achieve such risk reduction is a private right of action for compensatory ... of health, safety, and the environment, and the promotion of internationally recognized labor rights." 5 Jeswald W. Salacuse & Nicholas P. Sullivan, Do ...
One of the new WTO agreements that panels and the Appellate Body had to deal with in a number of ... more One of the new WTO agreements that panels and the Appellate Body had to deal with in a number of recent disputes is the Agreement on Sanitary and Phytosanitary (SPS) Measures. This article focuses on the legal principles of the SPS Agreement as interpreted and established by Appellate Body and panel jurisprudence in the two most prominent cases under the SPS Agreement, the EC -Hormones case and the Australia -Salmon case, as well as the recently concluded Japan -Varietals case. Substantive rights and obligations such as scope of application, scientific evidence, risk assessment and the factors to be looked at in assessing risk, provisional measures, the acceptable level of risk for WTO Members, non-discrimination under Articles 2.3 and 5.5 SPS, and measures in the presence of international standards are examined. The above-mentioned cases also involved a number of procedural issues with particular relevance to disputes on SPS measures, such as the panel's terms of reference, the burden of proving whether a risk exists, the extent of a panel's investigation and the role of scientific experts. The status of implementation of reports is also briefly addressed.
So far WTO jurisprudence has not resolved the puzzle of how WTO Members that are part also of a r... more So far WTO jurisprudence has not resolved the puzzle of how WTO Members that are part also of a regional trade agreement (such as NAFTA or MERCOSUR) should conduct safeguard investigations and apply eventual safeguards in line with WTO rules. Can or must they exclude regional imports from the injury determination? Can or must they apply the eventual safeguard only to third parties, or are they under an obligation rather to apply all safeguards on a non-discriminatory basis? Those are the questions examined in this paper. The paper refocuses some of the attention to GATT Article XIX and criticizes the Appellate Body's requirement of parallelism as well as its jurisprudence under GATT Article XXIV. It also offers an alternative way forward and ends with a list of options for WTO safeguards by members of customs unions or free trade areas. Associate Professor, Duke Law School, formerly with the Legal Affairs Division and the Appellate Body Secretariat of the WTO.
This article considers the role of scientific rationality in understanding statements of risk pro... more This article considers the role of scientific rationality in understanding statements of risk produced by a scientific community. An argument is advanced that, while scientific rationality does impose constraints on valid scientific justifications for restrictions on products and practices, it also provides flexibility in the judgments needed to both develop and apply characterizations of risk. The implications of this flexibility for the understanding of risk estimates in WTO and NAFTA deliberations are explored, with the goal of finding an intermediate ground between the view that science unambiguously justifies or rejects a policy, and the view that science is yet another cultural tool that can be manipulated in support of any decision. The result is a proposal for a dialogical view of scientific rationality in which risk estimates are depicted as confidence distributions that follow from a structured dialogue of scientific panels focused on judgments of evidence, evidential reasoning, and epistemic analysis.
In China–Audiovisuals, a series of Chinese restrictions on the importation and distribution of ce... more In China–Audiovisuals, a series of Chinese restrictions on the importation and distribution of certain ‘cultural’ or ‘content’ goods and services were found to violate GATT, GATS, and China's Accession Protocol. This paper reviews the definition of what is a ‘good’ (is a ‘film’ a good or a service?) and the extent to which GATT Article XX exceptions can justify violations under WTO instruments other than the GATT itself. We argue that trade volumes are unlikely to significantly rise as a result of this ruling as it does not affect China's right to keep out foreign films and publications if China finds them objectionable. However, foreign producers of audiovisuals can now gain potentially large economic rents, by being able to export and distribute their products into the Chinese market. Finally, we discuss the issue of the protection of cultural goods and review the recent literature on trade and culture that has put forward economic arguments to justify, under some conditio...
CHARNOVITZ: The Appellate Body's decision in the Tariff Preferences case demonstrates th... more CHARNOVITZ: The Appellate Body's decision in the Tariff Preferences case demonstrates the value of a second-level review of panel decisions. Notwith-standing the composition of the panel which was as highly qualified, balanced, and diverse as any panel could possibly be ...
... Especially before a particular court or tribunal, it is important to include all internationa... more ... Especially before a particular court or tribunal, it is important to include all international law binding between the parties as part of the applicable law, even if the jurisdiction of the adjudicator is limited to a given treaty (say, WTO covered agreements). ...
Depending on how one classifies market intervention, trade liberalization disciplines can be leni... more Depending on how one classifies market intervention, trade liberalization disciplines can be lenient or strict. Perhaps the most important distinction in this respect is that between government intervention labeled as a ' market access restriction' and that defined as 'domestic regulation'. Both the GATT and the GATS declare market access restrictions (such as import quotas or limitations on the number of service suppliers) to be, in principle, prohibited. In contrast, domestic regulations (such as internal taxes, health standards, and safety requirements) are treated with much more deference. They are, in essence, only prohibited when discriminatory or more trade restrictive than necessary. Notwithstanding these major legal consequences, the distinction between market access and domestic regulation remains unclear. Based on a recent WTO dispute condemning the United States for banning online gambling, this article is an attempt to clarify the distinction. Starting from broad similarities, it finds crucial differences in this respect between GATT and GATS. For both, however, the paper's basic point is that a domestic regulation should not be regarded as a market access restriction simply because it has the effect of banning certain imports. To do otherwise risks seriously undermining the regulatory autonomy of WTO Members beyond anything imagined by the drafters of the WTO treaty. * I am extremely grateful for comments and discussions with
An important, though oft neglected, distinction between multilateral treaty obligations separates... more An important, though oft neglected, distinction between multilateral treaty obligations separates obligations of a bilateral nature from those of the collective or erga omnes partes type. Multilateral obligations of the bilateral type can be reduced to a compilation of bilateral, state-to-state relations. They can be compared to contracts. Collective obligations, in contrast, cannot be divided into bilateral components. They are concluded in pursuit of a collective interest that transcends the individual interests of the contracting parties. The standard example of such obligations are those arising under a human rights treaty. In domestic law, collective obligations can be compared to criminal law statutes or even domestic constitutions. This essay examines the origins of the distinction between bilateral and collective obligations, as well as its major consequences, both in the law of treaties and the law on state responsibility. On that basis, a wider typology of multilateral treaty obligations is suggested. In the exercise, obligations arising under the World Trade Organization are used as a case study. The argument is made that WTO obligations remain essentially of the bilateral type; they are not collective in nature. by guest on
... As Alan Sykes put it, "The most effective mechanism to achieve such risk reduction is a ... more ... As Alan Sykes put it, "The most effective mechanism to achieve such risk reduction is a private right of action for compensatory ... of health, safety, and the environment, and the promotion of internationally recognized labor rights." 5 Jeswald W. Salacuse & Nicholas P. Sullivan, Do ...
One of the new WTO agreements that panels and the Appellate Body had to deal with in a number of ... more One of the new WTO agreements that panels and the Appellate Body had to deal with in a number of recent disputes is the Agreement on Sanitary and Phytosanitary (SPS) Measures. This article focuses on the legal principles of the SPS Agreement as interpreted and established by Appellate Body and panel jurisprudence in the two most prominent cases under the SPS Agreement, the EC -Hormones case and the Australia -Salmon case, as well as the recently concluded Japan -Varietals case. Substantive rights and obligations such as scope of application, scientific evidence, risk assessment and the factors to be looked at in assessing risk, provisional measures, the acceptable level of risk for WTO Members, non-discrimination under Articles 2.3 and 5.5 SPS, and measures in the presence of international standards are examined. The above-mentioned cases also involved a number of procedural issues with particular relevance to disputes on SPS measures, such as the panel's terms of reference, the burden of proving whether a risk exists, the extent of a panel's investigation and the role of scientific experts. The status of implementation of reports is also briefly addressed.
So far WTO jurisprudence has not resolved the puzzle of how WTO Members that are part also of a r... more So far WTO jurisprudence has not resolved the puzzle of how WTO Members that are part also of a regional trade agreement (such as NAFTA or MERCOSUR) should conduct safeguard investigations and apply eventual safeguards in line with WTO rules. Can or must they exclude regional imports from the injury determination? Can or must they apply the eventual safeguard only to third parties, or are they under an obligation rather to apply all safeguards on a non-discriminatory basis? Those are the questions examined in this paper. The paper refocuses some of the attention to GATT Article XIX and criticizes the Appellate Body's requirement of parallelism as well as its jurisprudence under GATT Article XXIV. It also offers an alternative way forward and ends with a list of options for WTO safeguards by members of customs unions or free trade areas. Associate Professor, Duke Law School, formerly with the Legal Affairs Division and the Appellate Body Secretariat of the WTO.
While the trade regime is often analyzed under the metaphoric assumptions of Newtonian mechanics,... more While the trade regime is often analyzed under the metaphoric assumptions of Newtonian mechanics, we propose an alternative, more organic representation. We argue that the trade regime seems to evolve as a complex adaptive system, at the edge of order and chaos. Drawing from a dataset of 280 different types of environmental provisions found in 680 trade agreements, we show how both the trade regime and the norms contained therein unfold by remaining stable (but not static) and dynamic (but not chaotic). Trade negotiators simultaneously explore new grounds by introducing legal innovations and exploiting known territories by adopting existing norms. Our analysis suggests that, even as the regime grows in the number and length of agreements, there are exploratory and exploitative processes at work. These twin processes can explain that the trade regime appears neither more fragmented/heterogeneous nor more centralized/homogenous than it was fifty years ago, despite its substantial expansion. This hypothesis is at the core of the research agenda that this paper lays out.
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Papers by Joost Pauwelyn