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International Trade & Investment Law > Final Exam > Flashcards

Final Exam Flashcards

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1
Q

Requirements for international trade

A

(1) good governance | (2) reduction of trade barriers | (3) more aid of development | (4) improved international cooperation & global governance

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2
Q

international trade rules are necessary to

A

(1) restrain countries from taking trade-restrictive measures | (2) provide security and predictability | (3) allow effective protection and promotion of societal values (i.e. public health, sustainable environment, consumer safety, cultural identity, minimum labor standards) | (4) achieve greater measure of equity in international economic relations

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3
Q

5 groups of basic rules of WTO law

A

(1) non-discrimination | (2) market access | (3) unfair trade | (4) conflict between trade liberalization and other societal values | (4) institutional and procedural

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4
Q

Sources of WTO Law

A

WTO Agreement [January 1, 1995]: primary source of WTO law; comprised of 16 Articles; established WTO; also established GATT 1994, GATS, TRIPS Agreement, and DSU | Other sources: [assist in clarifying and defining] dispute settlement reports, acts/agreements/practices/negotiations of WTO bodies, CIL, etc.

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5
Q

timeline from the GATT to the WTO

A

Gatt 1947 (US called for meeting to make multilateral agreement after WWII) –> stillbirth of ITO at same time –> Uruguay Round Negotiations (1993) –> creation of WTO (signed in Marrakesh)

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6
Q

objectives of WTO

A

(1) increase in standards of living, (2) attainment of full employment, (3) growth of real income and effective demand, (4) expansion of production of and trade in goods and services

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7
Q

means of obtaining WTO objectives

A

(1) reduction of tariff barriers/other barriers to trade, and (2) elimination of discriminatory treatment in international trade

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8
Q

functions of WTO

A

[six widely defined functions] (1) the facilitation of the implementation of the WTO agreements; (2) negotiations on new trade rules; (3) the settlement of disputes; (4) trade policy review; (5) cooperation with other organizations; and (6) technical assistance to developing countries

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9
Q

overarching primary function of WTO

A

to provide the common institutional framework for the conduct of trade relations among its Members

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10
Q

types of WTO memberships

A

(1) original (available at time of establishment), and (2) accession (need to accept terms & negotiate two things: 1. that practices are/will be made consistent, and 2. “entry ticket” concessions)

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11
Q

3 categories of WTO members

A

(1) developed, (2) developing, (3) least-developed (latter two sometimes receive special helpful treatment)

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12
Q

WTO form of decision-making

A

consensus (subjects WTO to paralysis) (if not available, each member gets on vote except EU)

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13
Q

structure of WTO

A

Ministerial Conference (highest level), General Council (second level, DSB, trade policy review body), Specialized councils, committees, working parties/groups (lower levels)

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14
Q

2 main rules of non-discrimination in WTO law

A

(1) MFN treatment obligation, and (2) national treatment obligation

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15
Q

MFN treatment obligation (GATT)

A

prohibits a country from favoring products, services, or service suppliers from some countries over like products, services, or service suppliers from other countries

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16
Q

GATT MFN 4 questions to determine whether a measure affecting trade in goods is consistent with the MFN treatment obligation

A

(1) whether the measure at issue is covered by Article I:1 | (2) whether the measure grants an advantage | (3) whether the products concerned are like products | (4) whether the advantage at issue is accorded immediately and unconditionally to all like products concerned irrespective of their origin or destination

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17
Q

national treatment obligation (GATT)

A

prohibits countries from favoring their own products, services, or service suppliers over like products, services, or service suppliers from other countries

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18
Q

GATT national treatment obligation 3 questions to determine whether a regulation affecting trade in goods is consistent with the national treatment obligation

A

(Article III:4) (1) whether the measure at issue is a law, regulation, or requirement covered by Article III:4 | (2) whether the imported and domestic products are like products | (3) whether the imported products are accorded treatment no less favorable

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19
Q

GATT national treatment obligation 4 questions to determine whether an internal tax affecting trade in goods is consistent with the national treatment obligation

A

(Article III:2) (1) whether the measure at issue is an internal tax or other internal charge on products | (2) whether the imported and domestic products are directly competitive or substitutable | (3) whether these products are dissimilarly taxed | (4) whether the dissimilar taxation is applied so as to afford protection to domestic production

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20
Q

objective and purpose of the DSS

A

prompt settlement of disputes; security and predictability of multilateral trading system

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21
Q

jurisdiction characteristics of DSS

A

compulsory, exclusive, contentious with a broad scope

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22
Q

WTO preferred form of dispute settlement

A

consultations (preferred over adjudication)

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23
Q

3 types of remedy for breach of WTO law

A

(1) withdrawal (or modification) of the WTO-inconsistent measure | (2) compensation | (3) suspension of concessions or other obligations (retaliation)

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24
Q

meaning of retaliation as a remedy for breach of WTO law; requirements to use retaliation; types

A

trade sanctions against the respondent; requires no agreement on compensation within 20 days; same sector, same agreement, other sector/other agreement

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25
Q

6 distinguishing features of WTO DSS

A

(1) short time frame | (1) confidentiality/lack of transparency | (3) burden of proof is on asserting party | (4) important role of private legal counsel | (5) allowance of amicus curiae briefs | (6) Members must act in good faith; panels and AB must ensure due process

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26
Q

2 main categories of barriers to market access

A

(1) tariff barriers, (2) non-tariff barriers

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27
Q

types of tariff barriers

A

(a) customs duties on imports (financial charges or taxes on imported goods, due because of their importation) (types of customs duties: ad valorem (proportionate to the estimated value of the goods concerned; most common type), specific, compound, or mixed) (b) other duties and charges on imports (financial charges or taxes levied on imported products and due because of their importation) | (c) export duties (i.e. customs duties and other duties and charges on exports)

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28
Q

types of non-tariff barriers

A

import bans, quotas, quality conditions, etc.

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29
Q

Basic principles and rules governing tariff negotiations

A

(1) the principle of reciprocity and mutual advantage, (2) MFN treatment obligation

30
Q

the principle of reciprocity and mutual advantage

A

reciprocity: when a Member requests another Member to reduce its customs duties on certain products, it must be ready to reduce its own customs duties on products which the other Member exports, or wishes to export; mutual advantage: for tariff negotiations to succeed, the tariff reductions requested must be considered to be of equivalent value to the tariff reductions offered

31
Q

General Exceptions to WTO violations

A

GATT 1994 Article XX; to determine whether GE applies, a panel must always examine:
(1) whether measure can be justified under Article XX (designed & necessary to protect relevant societal value/interest –> public morals, public order, public health/environment, compliance with laws); and if so (2) whether application meets even-handedness requirements of the chapeau of these provisions (no unjustifiable discrimination, and no disguised restriction on trade)

32
Q

Security Exceptions to WTO violations

A

GATT 1994 Article XXI; to determine whether SE applies, a panel must examine whether the measure at issue: (1) is taken in time of war or other emergency in international relations; and (2) is a measure which the Member considers necessary for the protection of its essential security interests

33
Q

function of regional trade exceptions

A

allow Members to adopt measures which are otherwise WTO-inconsistent but are taken in the context of (regional) economic integration (in the pursuit of economic integration with other countries)

34
Q

regional trade exception justifies an inconsistent measure if

A

(1) introduced upon the formation of a customs union (CU), free trade area, or interim agreement; and (2) formation of customs union or free trade area would be prevented if measure were not allowed

35
Q

4 sources of investment law

A

(1) CIL | (2) treaties (BITs) | (3) general principles of international law | (4) contracts

36
Q

Fair and Equitable Treatment Standard principles

A

good faith, transparency, consistency, stability, protection of legitimate expectations of investors, compliance with contractual obligations, due process, freedom from coercion and harassment

37
Q

what is a TBT agreement?

A

an international treaty administered by the WTO that applies to technical regulations, standards, and conformity assessment procedures relating to products and (related) processes and production methods

38
Q

TBTs require 3 main things

A

(1) accordance of MFN and national treatment obligation to imported products, (2) create no unnecessary obstacles to international trade, (3) use international standards as a basis for TBTs

39
Q

other requirements of TBT

A

that Members consider accepting technical regulations of other members, a number of transparency and notification obligations, special and differential treatment for developing-country Members

40
Q

what is the SPS Agreement?

A

a measure that (1) aims at the protection of human or animal life or health from food-borne risks; or (2) aims at the protection of human, animal, or plant life or health from risks of pests or diseases

41
Q

obligations of SPS Agreement

A

only measures (1) necessary, (2) based on scientific principles, (3) not arbitrary

42
Q

two types of SPS risk assessment

A

(1) for risks from food and feed, (2) for risks from pests and diseases

43
Q

two SPS risk management requirements

A

(1) avoid arbitrary or unjustifiable distinctions in levels of protection, and (2) ensure measures are not more trade restrictive than necessary

44
Q

definition of dumping

A

the introduction of a product into the commerce of another country at less than its normal value

45
Q

is dumping prohibited by the WTO?

A

no

46
Q

function of the Anti-Dumping Agreement

A

(part of WTO) says what Members can do to offset the injurious effects of dumping

47
Q

ADA investigation three steps

A

(1) initiation (need a request & sufficient evidence), (2) conduct investigation (need due process & transparency, (3) conclusions (need public notice & judicial review)

48
Q

3 conditions must be met for the imposition of an anti-dumping measure

A

(1) dumping exists (calculate dumping margin –> DM = normal value (NV) – export price (EP); (2) domestic industry is suffering an injury; (3) causal link

49
Q

3 types of anti-dumping measures

A

(1) provisional anti-dumping measures (require preliminary determination of dumping; necessary to prevent injury) | (2) price undertakings (voluntary revision of prices or cessation of exports at dumped price) | (3) definitive anti-dumping measures (require definitive determination of dumping; cannot be more than DM, but can be less – lesser duty rule)

50
Q

definition of a subsidy

A

a financial contribution by a government or public body which confers a benefit

51
Q

2 types of subsidy

A

(1) prohibited, (2) actionable

52
Q

2 types of prohibited subsidy

A

(1) export subsidies (subsidies contingent upon export performance); and (2) import substitution subsidies (subsidies contingent upon the use of domestic over imported goods)

53
Q

actionable subsidies (when can they be challenged?)

A

can be challenged in the event that they cause adverse effects to another Member; 3 types of adverse effect: (1) injury (material or retardation) to domestic industry of another member; (2) nullification or impairment of benefits accruing to other Members; (3) serious prejudice (displacement/impedance of imports, price undercutting, suppression, depression, lost sales)

54
Q

remedies for actionable subsidies

A

remove adverse effects OR withdraw the subsidy

55
Q

definition of a countervailing duty

A

a measure taken against injurious subsidization to offset it

56
Q

3 types of countervailing measures

A

(1) provisional countervailing measures (require preliminary determination of injury; (2) voluntary undertakings (voluntary elimination/limitation of subsidy or revision of prices); (3) definitive countervailing duties (require final determination of injury; should be limited to amount necessary to counteract injury)

57
Q

3 conditions must be met to impose a countervailing duty

A

(1) subsidized imports; (2) injury; (3) causal link

58
Q

economic emergency exceptions to WTO

A

allow Members to adopt two types of measures that are otherwise WTO-inconsistent: (1) safeguard measures and (2) balance-of-payments measures

59
Q

safeguard measures

A

restrict imports of a product temporarily if a domestic industry is seriously injured or threatened with serious injury caused by a surge in imports

60
Q

test for allowance of safeguard measures

A

(1) increase in imports, (2) serious injury (or threat thereof) to domestic industry of like/directly competitive products, (3) causal link between increased imports and injury

61
Q

balance of payment measures

A

a Member may apply import restrictions for balance-of-payments reasons; Article XII authorizes Members to vary the incidence of import restrictions in such a way as to give priority to the importation of those products which are more essential; Article XVIII:B contains a similar authorization for developing country Members to give priority to the importation of those products which are more essential in the light of its policy of economic development.

62
Q

BoP measures requirements

A

only to extent necessary; avoid unnecessary damage to other Members; non-discriminatory; justified; progressive relaxation of BoP measures until removal; removal when BoP situation has returned to “normal”

63
Q

MFN treatment obligation: [Article II:1 of the GATS]

A

prohibits discrimination between like services and service suppliers from different countries

64
Q

purpose of GATS MFN

A

to ensure that all WTO Members are afforded equality of opportunity to supply services, regardless of the origin of the services or the nationality of the service suppliers

65
Q

3 questions determine whether measure consistent with GATS MFN treatment obligation

A

(1) whether the measure at issue is covered by Article II:1, (2) whether the services and service suppliers concerned are like, (3) whether like services and service suppliers are accorded treatment no less favorable

66
Q

how does GATS national treatment obligation differ from GATT n.t.o.

A

whereas GATT n.t.o. has general application, GATS national treatment obligation only applies to a measure affecting trade in services to the extent that a WTO Member has explicitly committed itself to grant national treatment in respect of the specific services sector and the specific mode of supply concerned

67
Q

4-tier test to determine whether a measure is consistent with the GATS national treatment obligation

A

(1) whether, and to what extent, a national treatment commitment was made, (2) whether measure at issue is a measure by a Member affecting trade in services, (3) whether the foreign and domestic services or service suppliers are like services and service suppliers, (4) whether the foreign services and service suppliers are granted treatment no less favorable

68
Q

GATS WTO General Exceptions: to determine whether GE applies, a panel must always examine

A

(1) whether measure can be justified under Article XIV of the GATS (designed & necessary to protect relevant societal value/interest); and if so
(2) whether application meets even-handedness requirements of the chapeau of these provisions (no arbitrary discrimination & no disguised restriction on international trade)

69
Q

GATS Security Exceptions

A

no panel ruling yet, but definitely justiciable

70
Q

GATS regional trade exceptions [Article V of the GATS]

A

a measure which is otherwise GATS-inconsistent can be justified under Article V of the GATS: (1) if introduced as part of an agreement liberalizing trade in services; and (2) WTO Members would be prevented from being party to an agreement liberalizing trade in services if the measure concerned were not allowed

71
Q

future of multilateral trading system

A

WTO is alive but barely kicking; WTO has had rule making failures (Doha) and successes; DSB is in crisis since US blockage in 2017; upcoming Ministerial Conference 2024 (Abu Dhabi): need to reform DSS; perhaps new rules will emerge

International Trade & Investment Law (1 decks)

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