The Jurisprudence of the World Trade Organization 2012
Journal article by Thomas Cottier, Tobias Naef, Tetyana Payasova, Rodrigo Polanco, Victor Saco and Charlotte Sieber-Gasser (WTI)
Abstract This paper analyses the jurisprudence of the WTO in 2012, which was an important year for the WTO dispute settlement. WTO Members filed 27 notifications of 'requests for consultations', the Dispute Settlement Body established 11 new dispute settlement panels, adopted 18 panel reports and 11 Appellate Body (AB) reports. The most important developments can be observed in the field of non-tariff barriers, in particular the law of technical regulations and standards, and of processes and production methods (PPMs). While the Agreement on Technical Barriers to Trade (TBT Agreement) was hardly ever invoked for a long time, this period saw no less than three leading cases, which this paper discusses in detail: 'US – COOL', 'US – Clove Cigarettes' and 'US – Tuna II'. They are of great importance for the law on labeling of products and thus crucial to the effort to reconcile trade and other values, in particular those relating to the environment and human rights. There is an increasing shift in focus towards production methods, and these three cases set important standards in that respect. Secondly, in 'China – Raw Materials' this paper addresses export restrictions on raw materials. While disciplines have been limited, the case, addressing export restrictions, makes a valuable contribution to an issue of increasing importance, in particular to Switzerland as one of the most commodity-import-dependent countries and a centre of commodity-trading reliant upon open markets. Thirdly, in 'US – Large Civil Aircraft' (2nd Complaint) the paper offers a summary of the most recent case law in the transatlantic disputes on aircraft subsidies. This complex case and its finding are of importance to Switzerland as the country lacks proper disciplines on subsidies – an issue strongly felt in Swiss–EU relations on corporate taxes which are subject to the Agreement on Subsidies and Countervailing Duties. Finally, in the case 'China – Electronic Payment Services', the paper reports the Panel’s finding on electronic payments systems and market access in China – a topic of interest with regard to long-term market access to China’s financial markets. Generally, also the case law under GATS remains scarce. The case of 'China - Electronic Payment Services' illustrates well how important the individual country Schedules of GATS are, and highlights that members must carefully enter into specific commitments. Members are free to negotiate their Schedules, but this may result in ambiguous commitments. The decision also confirmed the dynamic character of Schedules by ruling that services, which fall within the scope of definition of a commitment but are not explicitly enumerated in the Schedule, may still create an obligation. This strengthens the dynamic development of GATS, but weakens predictability.