1.
EC – Bananas III (WT/DS27/AB/R)
Facts:
The European Communities had a preferential import regime for bananas. It granted more
favourable treatment to bananas imported from ACP (African, Caribbean, and Pacific)
countries under the Lomé Convention, as compared to those from Latin American countries,
despite all being WTO Members.
Judgment:
The Appellate Body ruled that the EC’s banana import regime violated Article I:1 of GATT
1994. The preferential treatment amounted to de jure discrimination based on origin and
failed the requirement that any advantage given to the product of one Member must be
extended immediately and unconditionally to like products of all Members.
Relevance to Your Argument:
This case establishes that origin-based tariff preferences not covered by exceptions violate
MFN obligations. Similarly, the U.S. through FTARA imposes different tariff rates (34% on
China, 26% on India, 20% on the EU, and 10% on others), clearly distinguishing treatment
solely based on origin, which amounts to de jure MFN violation under Article I:1.
2. Canada – Autos (WT/DS139, 142/AB/R)
Facts:
Canada gave import duty exemptions to automobile manufacturers who met specific
Canadian content requirements under the Canada–U.S. Auto Pact. These exemptions were
only extended to certain companies from the U.S., not to other WTO Members.
Judgment:
The Appellate Body found that Canada’s import duty exemptions violated Article I:1 by
offering an “advantage” to like products from some Members that was not extended to all
others. It emphasized that the MFN principle applies to any advantage, including customs
duty exemptions, and not just to tariffs.
Relevance to Your Argument:
The case confirms that differential treatment—whether via exemption or tariff rate—based on
origin contravenes Article I:1. The FTARA structure imposes higher tariffs only on certain
Members, thus granting a more favourable competitive condition to others, which is directly
analogous to the situation in this case.
3. US – Section 301 Trade Act (WT/DS152/R)
Facts:
The EU challenged the U.S. Trade Act’s Section 301, which allowed the U.S. to unilaterally
impose retaliatory trade measures against other WTO Members outside the WTO dispute
settlement mechanism.
Judgment:
While the Panel didn’t find a violation per se, it emphasized that WTO Members must
resolve disputes within the multilateral framework of the DSU and must not take unilateral
retaliatory actions. It held that any measure that circumvents the DSU and leads to unilateral
discriminatory trade action is incompatible with WTO obligations.
Relevance to Your Argument:
This case supports your argument that the U.S. cannot use claims of unfair trade or lack of
reciprocity to justify discrimination. The FTARA is a unilateral measure applying
discriminatory tariffs based on alleged trade imbalances—exactly the kind of conduct this
case warns against.
4. US – Gasoline (WT/DS2/AB/R)
Facts:
The U.S. set cleaner fuel standards and gave domestic gasoline producers more flexibility in
compliance than foreign refiners. Venezuela and Brazil challenged the measure under Article
I and XX of GATT.
Judgment:
The Appellate Body agreed that the U.S. violated GATT rules and held that while
environmental protection is a legitimate policy under Article XX(b), the U.S. measure was
applied in an arbitrary and discriminatory way, violating the chapeau of Article XX.
Relevance to Your Argument:
If the U.S. tries to justify FTARA under Article XX exceptions, this case shows that even if
the measure serves a legitimate goal, it must not be applied in a discriminatory way. Since
FTARA is overtly origin-based, it fails the Article XX chapeau test just like the U.S. gasoline
standards.
5. US – Shrimp (WT/DS58/AB/R)
Facts:
The U.S. banned imports of shrimp from countries that did not require turtle-excluder
devices. The measure applied mostly to developing countries and was imposed without
adequate consultation or flexibility.
Judgment:
The Appellate Body held that although the measure could fall under Article XX(g)
(environmental protection), its application was arbitrary and discriminatory, especially
because it was enforced without due process or consultation. It therefore failed the chapeau of
Article XX.
Relevance to Your Argument:
This case demonstrates that a WTO Member cannot apply a measure with discriminatory
effects, even when pursuing legitimate goals. FTARA’s tariffs apply selectively to certain
WTO Members and are based on arbitrary standards of “reciprocity”—making them similarly
unjustifiable under Article XX.
6. Russia – Traffic in Transit (WT/DS512/R)
Facts:
Ukraine challenged Russia’s restrictions on Ukrainian goods transiting through its territory,
which Russia justified under Article XXI(b)(iii) (national security exception), citing the 2014
political conflict.
Judgment:
The Panel ruled that Article XXI is not a self-judging provision. While it allows Members
discretion, they must act in good faith and show a genuine link to a security interest. The
panel recognized that national security claims are valid only during a “war or other
emergency in international relations.”
Relevance to Your Argument:
If the U.S. tries to invoke Article XXI to shield FTARA, this case provides a clear boundary:
economic retaliation or dissatisfaction with trade imbalances does not qualify as a national
security concern. FTARA’s economic motivation places it outside the protective scope of
Article XXI.
