WTO Law and Domestic Regulation

Wolfgang Weiß

doi:10.17104/9783406779343

Summary

Weiß

WTO Law and Domestic Regulation

The book explores the impact of WTO law on domestic regulatory autonomy. It identifies and critically analyses the mechanisms working in WTO law that cause increasing interferences with domestic law and thus restrain the regulatory autonomy of the WTO members. The book proposes ways how WTO law be conceptualized to enhance the policy space of WTO members. Therefore, the book demonstrates the flexibilities in interpreting and applying WTO core principles and provisions and explores interpretive and institutional conceptions that could serve as a pathway of allocating greater policy leeway to WTO members. The analyses presented address the disturbing observation that even though WTO law appreciates the regulatory leeway of WTO members in several provisions across agreements, the WTO judiciary´s case law, but also other governance mechanism active in the WTO appear to narrow down the WTO members´ regulatory autonomy and to considerably limit the space for domestic policy choices. Wide spread, even scholarly perception of the WTO, and most recently the Trump administration blame the WTO, in particular its dispute settlement branch, for being biased towards free trade and unduly restraining even legitimate domestic policies, and voiding the domestic policy space needed for addressing societal concerns and global problems. A closer look at the development of GATT/WTO law, however, reveals that, in GATT era, panels were aware of the effect their interpretations had on domestic policy space, and that some of the more recent WTO dispute settlement reports show attempts to expand WTO member´s leeway again. These observations are the starting point for an in-depth analysis of the different mechanisms present in WTO law which impact on domestic regulation.

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Bibliographic data

Copyright year: 2022
ISBN-Print: 978-3-406-74410-5
ISBN-Online: 978-3-406-77934-3
Publisher: C.H.BECK Recht - Wirtschaft - Steuern, München
Series: Beck International
Language: English
Pages: 442
Product type: Book Titles

Titelei/Inhaltsverzeichnis No access Pages I - XIV
1. A. The Mission of this Book: Identifying the Determinants of the WTO’s Impact on Domestic Regulatory Autonomy No access Pages 1 - 4
2. B. Globalisation’s Challenges to Domestic Regulatory Autonomy No access Pages 4 - 8
3. C. WTO Law Ambivalences with regard to Domestic Regulatory Autonomy No access Pages 8 - 15
4. D. Core message and structure of the book No access Pages 15 - 17
1. 1. I. The Notion of Regulation No access
  2. II. Rationales for Regulation No access
  3. III. Instruments of Regulation No access
  4. IV. Regulatory Convergence since the 1980s No access
2. 1. I. Legitimacy and Self-determination No access
  2. II. Non-Economic Policy Choices No access
  3. III. Constitutional Functions No access
  4. IV. Regulatory Competition No access
  5. V. Reconciling International Regulation and Regulatory Competition? No access
3. 1. I. Peculiarities of Regulating Trade in Services Compared to Trade in Goods No access
  2. II. The Complexity of Regulating Services No access
  3. III. Consequences for the International Regulation of Trade in Services and its Drawbacks on Regulatory Autonomy No access
  4. IV. In Particular: GATS and Domestic Regulation No access
  5. V. Conclusion No access
4. 1. I. Conceptualization of WTO Disciplines as an Allocation of Jurisdiction No access
  2. II. Interpretation of WTO law as Choice between the Country of Origin or the Country of Destination Principle No access
  3. III. Choices for the Interpretation of Core WTO Rules No access
5. E. Conclusion No access Pages 46 - 49
1. A. The Usefulness of a comparison to the EU for an Analysis of the WTO No access Pages 49 - 51
2. 1. I. Substantial and Progressing Transfer of Competences and Continuous Expansion of Secondary Law No access
  2. II. Dynamic and Purposive Conception of EU Competences, and Direct Effect of EU Law having Priority over Domestic Law No access
  3. III. From Fundamental Freedom Non-Discrimination to Bans against Any Impediment to Trade, and its Consequences (Mutual Recognition, Country of Origin Principle, Expansion of Justifications) No access
  4. IV. Importance of Judicial Law-Making, and of the Substantial Role of the Individual in EU law No access
  5. V. Elements preserving the Regulatory Autonomy of EU Member States No access
3. 1. I. Limited Finality of the WTO No access
  2. II. WTO Poor Decision Making Structures, and their Consequences for the Role of the Judiciary No access
  3. III. Consequences of the WTO’s Institutional Structure: Negative Integration and Careful Interpretive Approaches No access
  4. IV. The Role of the Individual in WTO Law No access
4. D. Conclusion: Consequences for the further Development of the WTO’s legal matrix No access Pages 75 - 79
1. A. Introduction No access Pages 79 - 81
2. 1. 1. 1. The liberal model No access
    2. 2. The governance model No access
    3. 3. The coordinated interdependence model No access
    4. 4. Conclusion No access
  2. 1. 1. WTO objectives according to the text No access
    2. 2. Objectives in the subsequent treaty practice No access
    3. 3. Institutional Changes corresponding to non-trade objectives No access
  3. III. Objection: Non-economic concerns as mere “exceptions”? No access
  4. IV. WTO non-trade objectives No access
  5. V. WTO’s object(ive) and purpose: Neither free trade nor deregulation, but trade liberalisation according to defined disciplines that balance conflicting interests No access
  6. 1. 1. Exceptions provide for WTO objectives, reflect the respect for regulatory heterogeneity and must not be interpreted narrowly No access
    2. 2. Unbiased balancing does not privilege trade interests and makes way for deference to national concepts No access
    3. 3. Objective Balancing considers Policies under Contemporary Circumstances No access
    4. 4. Objective Balancing gives a Role to Non-WTO International Law No access
3. 1. 1. 1. Wide versus Narrow Conceptions of Non-Discrimination and Regulatory Autonomy No access
    2. 2. The three basic Alternatives in Interpreting Non-Discrimination, and their Effect on Domestic Regulation No access
    3. 3. The Elements of the Non-Discrimination Test and the Role of Likeness No access
    4. 4. Conclusion No access
  2. 1. 1. Interpretation of MFN non-discrimination No access
    2. 2. De facto discrimination No access
    3. 3. Likeness No access
  3. 1. 1. Object and purpose of NT Non-Discrimination No access
    2. 2. National Treatment and Domestic Policies No access
    3. 3. Concept of National Treatment (1): Fiscal National Treatment in Article III:2 GATT No access
    4. 4. Concept of National Treatment (2): Regulatory National Treatment in Article III: 4 GATT, Article 2.1 TBT Agreement, and Article XVII GATS No access
    5. 5. Material Notion of Non-Discrimination and Likeness Distinctions based on PPMs No access
  4. 1. 1. Applying a Material Notion of Non-Discrimination within the Treatment Standard No access
    2. 2. Neither a Ban against any Impediment to Trade, nor a Necessity or Reasonableness Standard No access
    3. 3. Objections against a Material Non-Discrimination No access
    4. 4. Burden of Proof No access
4. 1. I. Per se Prohibitions of Domestic Measures in Article XI GATT and Article XIV GATS and domestic regulatory autonomy No access
  2. 1. 1. Same Rationale, but different Tests No access
    2. 2. Inconsistent Case Law on the Scope of Article III versus Article XI GATT No access
    3. 3. In particular: The Ad Note to Article III GATT and PPMs No access
  3. 1. 1. Delineating Articles XVI and XVII GATS in the same way as Articles III and XI GATT No access
    2. 2. Objections against transferring the interpretive logic for the demarcation of Article III and XI GATT to Article XVI and XVII GATS No access
    3. 3. Conclusion on the demarcation between Article XVI GATS and Article XVII GATS from the perspective of domestic regulatory autonomy No access
  4. IV. Conclusion: Conceptualising Market Access and Domestic Regulatory Autonomy No access
5. 1. 1. 1. Exceptions: Confirming Regulatory Autonomy and Requiring a More Principled Reasoning No access
    2. 2. The double-edged Structure of Exceptions: A Threat to Regulatory Autonomy No access
    3. 3. Undue Restraints to Exception Provisions No access
  2. II. Expanding the Closed List of Regulatory Objectives in Justification Clauses No access
  3. III. Cross-Agreement Application of General Exceptions? No access
  4. 1. 1. The notion of “necessary”: Less restrictiveness test or weighing and balancing? No access
    2. 2. Conclusion: the Notion of “necessary” from the Perspective of Domestic Regulatory Autonomy No access
    3. 3. Burden of Proof No access
  5. V. The Chapeau as a unifying Necessity Test? No access
  6. VI. The Chapeau: The Final Litmus Test for Domestic Regulatory Autonomy No access
  7. VII. Conclusion No access
6. F. Conclusion: Conceptualising Core Principles for the Benefit of Domestic Regulatory Autonomy, and Identifying the Determinants for the Impact of WTO Law No access Pages 281 - 285
1. A. Restraining Regulatory Autonomy: Harmonisation, Standardisation, and Mutual Recognition No access Pages 285 - 289
2. 1. I. The Confines of Non-Discrimination No access
  2. II. Disciplining Domestic Regulation by Rationality Requirements No access
  3. III. Disciplining Domestic Regulation by International Regulatory Conceptions No access
3. 1. 1. 1. “Use as Basis” is not “Conforming to” No access
    2. 2. Which kind of Relationship then? No access
  2. 1. 1. Requirements for deviation No access
    2. 2. Complying or Being Challenged, OR neither Complying nor Being Challenged? No access
    3. 3. Minimum standards? No access
  3. III. Requirements for International Standards No access
  4. IV. Conclusion: Harmonisation by International Standards and Domestic Regulatory Autonomy No access
4. 1. 1. 1. The Requirement of Risk Assessment: Factors No access
    2. 2. The Requirement of Risk Assessment: Flexibility in Methodology No access
    3. 3. The Requirement of Risk Assessment refers to Actual and Specific Risks No access
    4. 4. The Requirement of Risk Assessment: the WTO judiciary as final arbiter about issues of science No access
    5. 5. The Requirement of Risk Assessment: Considerable Incentive but no Obligation to comply with International Standards No access
  2. II. Determination of Appropriate Level of Protection No access
  3. III. Not More Trade Restrictive than Required: Article 5.6’s Necessity Test No access
  4. 1. 1. Preliminary Results: Risk Assessment and the Determination of the Level of Protection No access
    2. 2. Scientific Requirements of Risk Assessment versus Diverse Approaches to Risks No access
    3. 3. Standard of Review and Domestic Regulatory Autonomy No access
  5. V. Conclusion No access
5. E. Procedural Harmonisation No access Pages 339 - 343
6. 1. I. Mutual Recognition and Domestic Regulatory Autonomy No access
  2. II. WTO Recognition Provisions No access
  3. III. Equivalence Recognition by virtue of Necessity Requirements? No access
  4. IV. Conclusion: Recognition Rules and Domestic Regulatory Autonomy No access
7. 1. 1. 1. The normative value of Committee rules No access
    2. 2. WTO normative competences: Article 12.1 SPS Agreement as an enabling provision? No access
    3. 3. Alternative Ways for Legal Relevance of Committee Acts No access
  2. 1. 1. Article VI:4 GATS and domestic sovereignty No access
    2. 2. Elaborate disciplines No access
    3. 3. Legal status of disciplines No access
8. H. Conclusion No access Pages 371 - 377
1. A. Introduction No access Pages 377 - 379
2. 1. I. Standard of Review and Domestic Regulatory Autonomy No access
  2. II. Guidance on the Standard of Review in WTO provisions No access
  3. 1. 1. Functions of the Standard of Review No access
    2. 2. Reviewing Legal versus Factual Issues No access
    3. 3. Allocation of Competence in Determining Facts No access
    4. 4. Consequences for the Standard of Review No access
  4. IV. Conclusion No access
3. 1. I. Burden of Proof versus Standard of Review No access
  2. II. Allocation of Burden of Proof in WTO law and Domestic Regulatory Autonomy No access
  3. 1. 1. WTO Judicial Practice No access
    2. 2. Burden of Proof and Categorisation of Norms No access
    3. 3. Critique of the Vital Importance of Categorisation No access
  4. IV. Enlarging Domestic Policy Space by Raising the Standard of Proof No access
  5. V. Conclusion No access
4. 1. I. Non-WTO International Law and Domestic Regulatory Autonomy No access
  2. II. The Role and Use of non-WTO International Law in WTO Judicial Practice No access
  3. III. Conclusion No access
Bibliography No access Pages 423 - 442