This paper is basically concerned with two major questions, which will be pointed out in the following. Therefore the researach is divided into two parts. Very specific questions are written down and the answers are given to the questions in the following. Therefore there is no table of contents necessary due to the fact that the paper is very much based on law. The research is based on empiric analysis of the topic.
Question 1
The General Agreement on Tariffs and Trade of 1994 (GATT 1994), which entered into force on 1 January 1995, replaced the General Agreement on Tariffs and Trade of 1947 (GATT 1947). Supporting your answer with relevant provisions of WTO agreements, as well as WTO jurisprudence (dispute settlement reports), discuss the following issues:
(a) The relationship between GATT 1994 and GATT 1947;
(b) The place of GATT 1994 in the WTO Agreement;
(c) The structure of GATT 1994;
(d) The relationship between provisions of GATT 1994 and provisions of other agreements found in Annex 1A (support your answer with examples of specific provisions);
(e) The significance of certain GATT provisions, which have not been developed in other agreements found in Annex 1A.
Question 2
The European Hormones Case. Analyze the case:
(a) The parties to the dispute and the facts of the case.
(b) The issues in question.
(c) The WTO agreements and provisions involved.
(d) A discussion of the reasoning applied by the Appellate Body. Discuss whether the Appellate Body upheld the panel’s findings and interpretations and if not, why did it modify or reverse them? Do you agree with the Appellate Body’s approach?
This paper is basically concerned with two major questions, which will be pointed out in the following. Therefore the researach is divided into two parts. Very specific questions are written down and the answers are given to the questions in the following. Therefore there is no table of contents necessary due to the fact that the paper is very much based on law. The research is based on empiric analysis of the topic.
Question 1
The General Agreement on Tariffs and Trade of 1994 (GATT 1994), which entered into force on 1 January 1995, replaced the General Agreement on Tariffs and Trade of 1947 (GATT 1947). Supporting your answer with relevant provisions of WTO agreements, as well as WTO jurisprudence (dispute settlement reports), discuss the following issues:
a) The relationship between GATT 1994 and GATT 1947;
b)The place of GATT 1994 in the WTO Agreement;
c) The structure of GATT 1994;
d) The relationship between provisions of GATT 1994 and provisions of other agreements found in Annex 1A (support your answer with examples of specific provisions);
e) The significance of certain GATT provisions, which have not been developed in other agreements found in Annex 1A.
1.) a.) Beginning with a general overview of what GATT 47’ and GATT 94’ are and therefore describing their relationship, the starting point has to be that GATT 47’ is not binding anymore and that the provisions of GATT 47’ have been incorporated into GATT 94’ as a substantial part of WTO law after the negotiations at the Uruguay-round held between 1986 and 1994. GATT 47’ basically dealt with trade in goods according to the establishment of the Bretton Woods system in 1948. Between 1948 and 1994 GATT has been modified and supplemented by legal instruments (process of institutionalization within GATT). Many of the provisions of GATT 47’ have been incorporated into GATT 94’. But what does it actually mean, incorporation of provisions?
Most of the key provisions and also its’ instruments, which have been established after 1948, have been carried over to GATT 94’ without change.[1] So incorporation of GATT 47’ – to a certain extent only – means the transfer of provisions to GATT 94’ without change.[2]
One has to consider two facts: GATT 47’ is not legally binding anymore but most of its’ provisions and legal instruments are within GATT 94’ which is set out in Annex 1A of the WTO Agreement. This was necessary because the Contracting Parties want to “ensure continuity and consistency in a smooth transition from the GATT 1947 system. This affirms the importance to the Members of the WTO of the experience acquired by the CONTRACTING PARTIES to the GATT 1947 — and acknowledges the continuing relevance of that experience to the new trading system served by the WTO.”[3] The legal standpoint looks like as follows: “The Marrakesh Agreement Establishing the World Trade Organization states that the General Agreement on Tariffs and Trade 1994 (GATT 1994) is an instrument legally distinct from the General Agreement on Tariffs and Trade dated 30 October 1947, annexed to the Final Act of the United Nations Conference on Trade and Employment (Havana Conference), and referred to as GATT 1947.”[4]
After describing the relationship between GATT 47’ and GATT 94’ it is very important to know where to find GATT 94’ including old GATT 47’ provisions in the WTO Agreement.
1.) b.) The WTO Agreement consists of several parts. In the beginning there is the Final Act that includes the results of the Uruguay Round followed by the Agreement establishing the World Trade Organization. The last part is the Understanding on Commitments in Financial Services. This is the general framework. But what is most important is in between these parts. There are four Annexes which are the main parts of WTO law. Annex 1 to 3 is the so-called integral part. That means that it is legally binding on all member states to the WTO. But the Contracting Parties do not have to accept Annex 4. The Plurilateral Trade Agreement (PTA) (Annex 4) is therefore only binding on Contracting Parties that want to be bound by it.
Annex 1 consists of:
Annex 1A, the Multilateral Agreements on Trade in Goods (MATGs)
Annex 1B, General Agreement on Trade in Services (GATS)
Annex 1C, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
Annex 2 is the Understanding of Rules and Procedures Governing the Settlement of Disputes. And finally Annex 3 is the Trade Policy Review Mechanism (TPRM). This is the main structural overview over the WTO Agreement.[5] GATT 94’ and GATT 47’ are both found in Annex 1A. It is clearly stated where to find GATT 94’ under WTO law in the Appellate Body Report according to the ‘Argentina – Safeguard Measures on Imports of Footwear’ case: “We note that the GATT 1994 is the first agreement that appears in Annex 1A to the WTO Agreement.”[6]
[...]
[1] The basic articles like the most favoured nations clause or national treatment (Art. I and Art. III) are examples for this incorporation process from GATT 47’ into GATT 94’
[2] GATT 1947, description Note 1 under URL: http://www.wto.org/english/thewto_e/whatis_e/eol/e/wto02/wto2_4.htm#note1
[3] G.2.1.1 Japan — Alcoholic Beverages II, p. 14, DSR 1996:1, p. 97 at 107–108.; Japan – Taxes on Alcoholic Beverages.
[4] GATT 1947, description Note 6 under URL: http://www.wto.org/english/thewto_e/whatis_e/eol/e/wto02/wto2_4.htm#note6
[5] The WTO Agreement. Legal Texts under URL: http://www.wto.org/english/docs_e/legal_e/final_e.htm
[6] G.2.1.2 Argentina — Footwear (EC), para. 80; Argentina – Safeguard Measures on Imports of Footwear.
- Quote paper
- Harald Löberbauer (Author), 2004, Questions on International Economic Law and Institutions, Munich, GRIN Verlag, https://www.grin.com/document/58631
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