China joined the World Trade Organization (WTO) in 2001 after almost 15 years of negotiations, making extensive commitments to open its markets to foreign investment and liberalize trade in goods and services. China represents a huge potential market for foreign telecommunications service providers; yet, in practice, foreign involvement in this market is extremely limited. This article identifies key commercial and legal barriers to foreign entry into China’s telecommunications service market, exploring areas of apparent non-compliance with WTO rules and China’s justifications for its current approach. This research provides a case study of China’s WTO compliance, the significance of obligations contained in China’s Accession Protocol, and the meaning of Members’ WTO commitments more generally under the General Agreement on Trade in Services. The article raises important considerations for China as it finalizes its telecommunications law, which has been in the drafting stages for many [...]
|
||||||
|
When deciding whether a general rule is inconsistent with the law of the World Trade Organization (WTO), a distinction has been drawn between rules that ‘mandate’ violations of WTO law, and rules that provide the ‘discretion’ to violate WTO law. Measures that include a discretionary element have, under the ‘mandatory/discretionary distinction’, been saved from a finding that they are ‘as such’ WTO-inconsistent. This article explores how the mandatory/discretionary distinction has been developed and applied in WTO law. It also questions the sharp divide between ‘mandatory’ and ‘discretionary’ measures that is implied by the distinction; and it argues that discretion comes in different forms, which should not all have the same relevance when assessing the WTO-consistency of rules. The article proposes a basic taxonomy involving three different types of discretion: the discretion to adopt or withdraw rules; the discretion to apply or not apply rules; and the discretion to select meaning through the interpretation and application of rules. For each category, the article offers views on the relevance of that type of discretion in examining the WTO-consistency of a general [...] The article deals with an important but strange contradiction in international legal practice. The official doctrine provides that states must fully compensate all damage caused by an internationally wrongful act. Yet, when it comes to compensating the injured party for the delay caused by the state’s failure to compensate promptly (usually awarded in the form of interest on the direct damages), international tribunals almost universally shy away from awarding the full economic measure of interest. The consequences of the systematic undercompensation of claimants in international law assume special gravity because of the long period of time that typically elapses between the injury and the award by a tribunal or claims commission. The delay commonly exceeds three years and sometimes extends to 10 or 15, during which time the value of an interest award begins to overshadow the value of the direct damages award itself. This institutionalized undercompensation of claimants occurs in every international human rights case, and more often than not elsewhere, from wrongful expropriation of property cases to breach of international contract claims. This article analyzes and attempts to explain this disconnection between doctrine and practice, and to relate it to the nature of the international decision-making [...] The Protocol Amending the TRIPS Agreement (or the TRIPS Amendment) is the first and, so far, only amendment of a core WTO agreement. It was intended to provide an expeditious solution to the difficulties that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face in making effective use of compulsory licensing under the TRIPS Agreement. The number of WTO Members that have accepted the Protocol since its adoption in December 2005 is far fewer than the total required for the amendment to enter into force. The number of further acceptances required for the amendment to take effect is no longer a straightforward matter because the European Union has deposited an instrument of acceptance of the Protocol while its individual Member States have not. The treatment of the EU Member States as regards acceptance of the TRIPS Amendment has implications for future amendments of WTO agreements, such as the eventual results of the Doha [...] This note addresses the trade policy measures states have taken during the current economic crisis and makes comparison with those taken during the Great Depression. While significant protectionist pressures are evident in both crises, the note finds that WTO Members have largely resisted broad protectionist measures and that the further decline in global trade volume during 2009 cannot be attributed to discretionary trade policies. Given these observations, the note suggests four elements of the multilateral trading system that preserve the system’s integrity and ensure that the WTO passes its most significant stress test yet. Based on these four elements—economic efficiency, transparency, enforceability, and stability—the note recommends normative principles applicable to all regulation of international economic [...] Anonymous individual opinions in World Trade Organisation (WTO) jurisprudence are occurring more frequently. This article describes and critiques the 14 individual opinions expressed to-date; discusses related legal issues; and compares the position in other international courts. It argues that the WTO strikes a balance by permitting individual opinions, if in the report and anonymous; but that 10 of the 14 were incorrect or unnecessary, and the others avoidable. It further argues that different views are adequately recorded in the summary of the parties’ arguments or the Dispute Settlement Body (DSB) minutes; and that if the Dispute Settlement Understanding (DSU) (Understanding on Rules and Procedures Governing the Settlement of Disputes) is functioning correctly, the collective intelligence of reasonable judges should lead them to common ground. Considering some of the particular characteristics of the WTO compared to other international courts, the article concludes that it is in the long-term interests of the WTO that individual opinions remain [...] |
||||||
|
|
||||||