Precaution, Scientific Development and Scientific Uncertainty under the WTO Agreement on Sanitary and Phytosanitary Measures

The World Trade Organization (WTO) Appellate Body has noted that the precautionary principle will be relevant to the interpretation of the WTO Agreement on Sanitary and Phytosanitary Measures in various ways, although the Appellate Body has declined to determine the status of the precautionary principle for international law or to find that it has been written into the SPS Agreement. The Appellate Body's awareness of precaution, the dynamics of scientific research and the nature of scientific uncertainty is to be welcomed. This awareness is helpful in dealing with new and emerging issues, such as the question of when a risk assessment relied upon by a WTO member becomes outdated by virtue of subsequent scientific developments. If maintained, an overly rigid approach to risk assessment, with a tight temporal focus, will inadequately acknowledge the natural processes of flux in the development of scientific knowledge.     

Canada loses appeal of WTO panel ruling on minimum patent terms

In the last issue, we reported on a ruling of a Panel of the World Trade Organization (WTO) that Canada was in breach of the international Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). The Panel found that Canada's Patent Act does not provide the minimum patent terms required by the trade agreement. Canada appealed that decision, but on 18 September 2000 the WTO Appellate Body upheld the Panel ruling.     

The Lack of Dissent in WTO Dispute Settlement

This article analyses in detail the fact that there has beenalmost no dissent in World Trade Organization (WTO) disputesettlement reports. Only a handful of articles have noted thisphenomenon, even in passing. The article first examines theempirical data with respect to dissenting and concurring opinionsat both the panel and Appellate Body levels. Fewer than 5% ofpanel reports and 2% of Appellate Body reports contain separateopinions of any kind. Second, it shows that the WTO is in factactively discouraging dissents and discusses why this mightbe the case. The article argues that dissents are valuable ingeneral and assesses whether more dissents would be a positivefor the WTO. It then reviews the few dissents that have beenpublished and demonstrates that 50% of the arguments raisedin dissents at the panel level were adopted in whole or in parton appeal by the Appellate Body, thus illustrating dissentscan and do make a difference. The article concludes that keepingthe lid on dissents may ultimately erode the strength of thedispute settlement system and hinder the ability of the WTOMembers to make appropriate changes to the Agreements.     

Allocating the Burden of Proof in WTO Disputes: A Critical Analysis

This article argues that the World Trade Organization (WTO)jurisprudence on the allocation of the burden of proof is ina confused state. Panels and the Appellate Body have failedto produce a consistent line of cases, which can be used asa predictable model to solve future cases. Furthermore, thejurisprudence has also created artificial differences betweensimilar provisions, raising questions about the relevance ofthe criteria employed to distinguish provisions that must beproved by the defendant from those that must be proved by thecomplainant. The analysis undertaken in this article suggeststhat it may be time to reflect upon the basic question of whythe burden of proof should be allocated to a given party. Thearticle explores alternatives and suggests courses of action.     

Completing the Analysis in WTO Appeals: The Practice and its Limitations

Since its creation in 1995, the Appellate Body of the WorldTrade Organization (WTO) has gradually constructed a consistentapproach to completing panels’ analysis where the circumstancespermit. The need for this practice stems from the limitationof WTO appeals to issues of law and the absence of remand inWTO disputes. The Appellate Body can be seen to complete a panel’sanalysis in two different scenarios: to deal with a claim thatthe panel failed to address; or to apply a different legal interpretationto the facts of the case, where the Appellate Body has reversedor modified the panel’s legal interpretation. In decidingwhether to complete a panel’s analysis, the AppellateBody appears to consider three criteria: the existence of uncontestedfacts to resolve the matter, the connection between the legalissues to be addressed in completing the analysis and thoseconsidered by the panel, and the due process rights of the partiesto the dispute. Where these criteria are not satisfied, theAppellate Body is unable to complete the analysis, and the disputemay go unresolved. This is an increasing problem, highlightingthe need for WTO Members to agree on a suitable remand mechanism.     

The Amicus Brief Issue at the WTO

The near-exclusive attention which many commentators have givento the importance of analysing the amicus brief issue in termsof transparency and accountability, often accompanied by accusationsof a lack of democratic status on the part of the countriesthat have objected to the admission of such briefs, is misplaced.The World Trade Organization (WTO) Members that have objectedmost strenuously to amicus brief submissions have been developingcountries—ironically, the most vocal proponents of anindependent, strong "trade court". Why should developing countriescomplain if the issue is really one of strategic and politicalinterests? After all, a "court" that takes it upon itself toaccept amicus briefs despite the protestations of the majorityof the WTO Membership is, in this sense, a "strong court". Whatthis article aims to provide is a very close account of theviews of the Members in the political debates on this issue.On that basis, it seems that abstract arguments based on thepositive role that non-governmental organizations (NGOs) canplay are unlikely to assuage developing countries' concerns.They only address the supposition that developing countriesare morally mistaken in their political views, or are sufferingfrom a false consciousness of the (real) threat of trans-boundarynon-governmental moral entrepreneurs. Instead, the concernsof these and other Members have to do with estimations aboutthe likely impact of WTO Appellate Body activism on the misapplication(and consequent unpredictability) of negotiated trade rules.These concerns should be taken seriously, for they go to theoriginal intent at Uruguay of having an impartial body whichwould impartially apply negotiated rules, with an eye towardsthe avoidance of political controversy. According to this view,fundamental gaps in trade regulation should be resolved by theMembers—not the Appellate Body.     

Connecting or Compartmentalizing the WTO and United States Legal Systems? The Role of the Charming Betsy Canon

Litigants before the US courts have frequently attempted toimprove their legal position by relying on the Charming Betsycanon of statutory interpretation under which statutes whichcan be interpreted consistently with international obligationsshould be so interpreted. The argument has effectively beenthat the canon should be permitted to provide the interfacebetween the World Trade Organization Agreements as interpretedby the World Trade Organization tribunals, and national statutesas interpreted by US executive agencies. The ease with whichthe canon can be stated belies the complexity and controversynow associated with its application. Some of the cases are arguablyirreconcilable while academic opinion is similarly polarizedby concerns about both the extent of judicial deference to agencyinterpretations, and about the slightest possibility of a moreinquisitive approach. This article discusses how the canon hasbeen applied and should be applied in domestic cases with aWorld Trade Organization dimension. A re-conceptualization ofthe canon's role in cases of this type is suggested.     

King Cotton, Developing Countries and the 'Peace Clause': The WTO's US Cotton Subsidies Decision

Although the World Trade Organization (WTO) is a powerful vehiclefor promoting economic development, the Uruguay Round has beenperceived by developing country WTO members as an unequal bargain.Especially with respect to agriculture, the Uruguay Round yieldedonly limited concessions. In September 2003, Doha Round effortsstalled at Cancún when developing countries coalescedto oppose a proposal that insufficiently liberalized trade inagriculture. In March 2005, the Dispute Settlement Body adopteda panel decision upholding Brazil’s legal challenge ofUS subsidies to cotton producers. The US Cotton Subsidies decisionrepresents a dramatic victory for Brazil and other developingcountry WTO members. The timing of the decision, coincidingwith ongoing Doha Round agriculture negotiations, ensures thatit will influence any outcome of the Round. This article examinesthe US Cotton Subsidies decision, describes the subsidy programsat issue in the dispute, reviews applicable WTO rules, and outlinesthe major findings of the panel and Appellate Body. The articleconcludes that Brazil’s victory in US Cotton Subsidiesmay represent a broader shift within the WTO away from a systemdominated by the US and EC toward a system that increasinglyis influenced by emerging market economies.     

Treaty Interpretation and the WTO Appellate Body Report in US - Gambling: A Critique

‘Before the game begins players should agree on a dictionaryto use in case of a challenge.’ (from the Official Rulesof SCRABBLE®)

Treaty interpretation in WTO law continues to represent a topicof highly theoretical and practical importance. The Panel’sand the Appellate Body’s reports in the recent US –Gambling dispute have critically turned on ascertaining themeaning of the United States’ GATS Schedule and ArticleXVI GATS on the basis of the public international law rulesof treaty interpretation as codified in the Vienna Conventionon the Law of Treaties. The paper’s principal aim is toreview the interpretative approach followed in particular bythe Appellate Body in reaching its decision in US – Gambling.Its main argument is that, although the Appellate Body appearsto be trying to emancipate itself from a rigorous textual approach,it has not yet embraced a holistic approach to treaty interpretation,one in which the treaty interpreter looks thoroughly at allthe relevant elements of the general rule on treaty interpretationpursuant to Article 31(1) of the Vienna Convention.     

Paśyantī, Pratibhā, Sphoţa and Jāti: Ontology and Epistemology in the Vākyapadīya

Eli Franco has recently suggested to distinguish the two main periods in the history of Indian philosophy, i.e. the older ontological and the new epistemological. In the Vākyapadīya, however, ontology and epistemology are evidently intertwined and interrelated. In this paper ontological and epistemological features of the concepts of pa?yantī, pratibhā, spho?a and jāti are analyzed in order to demonstrate that all these concepts, while being ontologically different, are engaged in similar epistemological processes, i.e. the cognition of a verbal utterance. Thus the identification of spho?a and jāti as well as of pa?yantī and pratibhā met with in some passages of VP and the commentaries implies not the absolute identity of these concepts, but only their overlapping in the sphere of epistemology. Considering concepts of different origin in one epistemological perspective enables to escape controversies in interpretation and provides a kind of consistency in a bit but amorphous work of Bhart?hari.     

The Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements

The Agreement Establishing the World Trade Organization reservesthe right to adopt ‘authoritative interpretations’of the multilateral trade agreements to the Ministerial Conferenceand the General Council. Given that, to date, this instrumenthas not been used, the present article intends to highlightits structural importance for the balance of powers within thelegal system of the World Trade Organization. It identifiesthe use that could and should be made of it and reviews thepractice so far. The article attempts to explain the reasonsfor the present lack of authoritative interpretations in theWorld Trade Organization and presents several options for thefuture. At the outset, this article explores the parametersthat are relevant for this discussion, notably the possiblescope and legal effects of an authoritative interpretation.Important questions are whether an authoritative interpretationis legally binding on all WTO Members, whether it may modifythe existing law or whether the rules of treaty interpretationare relevant in the formulation of an authoritative interpretation,and whether its validity can be challenged in dispute settlement.     

Linguistic Justice in International Law: An Evaluation of the Discursive Framework

Claims by minority groups to use their own languages in different social contexts are often presented as claims for “linguistic justice”, that is, justice as between speakers of different languages. This article considers how the language of international law can be used to advance such claims, by exploring how international law, as a discourse, approaches questions of language policy. This analysis reveals that international legal texts structure their engagement with “linguistic justice” around two key concepts: equality and culture. Through a close examination of the way in which these concepts function within international legal discourse, the article suggests that this conceptual framework may sometimes constrain, as well as enlarge, the possibilities for justice for minority language speakers. Thus while international law may provide a language for challenging injustices in the linguistic sphere, limitations inherent in this discourse may also restrict its emancipatory potential.     

Influence of WTO decisions on international intellectual property

Legal context: The task of harmonization in the IP framework is currently atrisk. This conclusion is shown by the way EU Member States have recentlyenacted Directive 2001/29 on the harmonization of certain aspectsof copyright and related rights on the information society.Particularly, no Member State seems to have considered the interpretationof the three-step test of the Berne Convention given in 2000by the WTO panel, notwithstanding its importance. Moreover, three recent opinions of the French Cour de Cassation,the French Conseil Constitutionnel, and the German Federal Courtof Justice appear not to have endorsed the WTO's interpretationof the three-step test. This scenario confirms the impressionthat the international framework is devoid of any degree ofharmonization. Key points: Although the aims of certainty and predictability in the internationaltrading system are among its main tasks, the World Trade Organizationhas not yet tackled the plight of harmonization, preferringa political approach to smooth conflicts and disputes. Yet,the World Trade Organization has recently taken important stepsthat seem to herald a new attitude. In United States—Sections301-310 of the Trade Act of 1974, the World Trade Organizationdismissed the traditional deference towards national legislations.In addition, at international and national levels, the AlleghenyLudlum and Softwood Lumber cases aligned their interpretationsto that of the World Trade Organization.     

What is adaptation to climate change? Epistemic ambiguity in the climate finance system

Over the past decade developed states have committed significant public financing for climate change adaptation. Much of this public financing flows through international development organizations. States have delegated the implementation and monitoring of adaptation to existing international organizations such as the World Bank, the United Nations Development Programme, and the Organisation for Economic Co-operation and Development. Scholars have noted that states delegate discretion to specialized organizations to perform a task on their behalf, but have not explored how uncertainties about the nature of the task affect delegation. This article addresses this gap by distinguishing the concept of epistemic ambiguity (when states are uncertain about the exact nature of a task) from strategic ambiguity (when states do not reach consensus over a task due to political differences) in order to address the question: how have states and international organizations defined and implemented adaptation activities? The question is answered through case studies of: (1) adaptation projects administered by the United Nations Development Programme and the International Organization for Migration in Kenya; and (2) states’ and international organizations’ attempts to develop methodologies for reporting adaptation financing. The case studies are based on: primary documents published by states and international organizations, secondary literature on climate finance, and interviews with adaptation experts. This article argues that states have not precisely defined adaptation, and that this is substantially due to epistemic ambiguity. It then identifies two consequences of epistemic ambiguity: a proliferation of activities labelled as adaptation, and difficulties tracking and monitoring adaptation assistance.     

The Case of <Emphasis Type="Italic">variae lectiones</Emphasis> in Classical Islamic Jurisprudence: Grammar and the Interpretation of Law

The qirā?āt or variae lectiones represent the vast corpus of Qur?ānic readings that were preserved through the historical processes associated with the textual codification and transmission of the Qur?ān. Despite the fact that differences among concomitant readings tend to be nominal, others betray semantic nuances that are brought into play within legal discourses. Both types of readings remain important sources for the history of the text of the Qur’ān and early Arabic grammatical thought. While some recent scholars have questioned the historical function and nature of the corpus of qirā?āt, others have argued that specific types of variant readings were the resultant products of attempts to circumvent legal inconsistencies which were found in text of the Qur?ān or were generated through legal debates. Following a preliminary review of the historical framework of the genesis of qirā?āt through reference to early grammatical literature, an attempt will be made to shed some light on the role that semantic variation among concomitant readings played in the synthesis and interpretation of law. The aim will be to draw attention to the subtle theoretical frameworks employed by jurists for their contextualization and analysis. This will also include a review of attitudes towards the forms of qirā?āt that classical scholarship designated as being anomalous or shādhdha.     

Interpretación de normas internacionales de distintos ordenamientos bajo el acuerdo de obstáculos técnicos al comercio de la OMC

This study gives evidence through the International Comparative Law, two rules that come from standardization bodies of different nature, such as standards of the International Organization for Standardization (ISO) and ASTM International (ASTM International), which are recognized in the international trade and domestic trade, but it plays erratically, being in some significant cases and not in others mandatory. Thus constituting real technical barriers to trade through discriminatory criteria, contrary to the provisions and spirit of the Agreement on Technical Barriers to Trade (TBT) of the World Trade Organization (WTO) and Free Trade Agreement (NAFTA), of which Mexico, the U.S. and Canada are also part.     

Some Remarks on the Genesis of Central Yogācāra-Vijñānavāda Concepts

The present paper is a kind of selective summary of my book The Genesis of Yogācāra-Vijñānavāda (2014). [1.–2.] It deals with questions of origin and early development of three basic concepts of this school, viz., the ‘idealist’ thesis that the whole world is mind only (cittamātra) or manifestation only (vijñaptimātra), the assumption of a subliminal layer of the mind (ālayavijñāna), and the analysis of phenomena in terms of the “Three Natures” (svabhāvatraya). [3.] It has been asserted (H. Buescher) that these three basic concepts are logically inseparable and therefore must have been introduced conjointly. [4.] Still, from Vasubandhu onward treatises have been written in which only one of the three concepts is advocated or demonstrated to be indispensable, without any reference to the other two being made. Likewise, in most of the earlier Yogācāra treatises, the three concepts occur in different sections or contexts, or are even entirely absent, as vijñaptimātra in the Yogācārabhūmi (except for the Sa?dhinirmocanasūtra quotation) and ālayavijñāna in the Mahāyānasūtrāla?kāra and Madhyāntavibhāga. [5.] It is therefore probable that the three concepts were introduced separately and for different reasons. [5.1.] As regards the concept of the “Three Natures”, I very hypothetically suggest that it was stimulated by the Tattvārthapa?ala of the Bodhisatvabhūmi. [5.2.1.] In the case of ālayavijñāna, I still think that my hypothesis that the concept (term + idea) originated from a problem emerging in connection with the “attainment of cessation” (nirodhasamāpatti) holds good and has not been conclusively refuted, but I admit that Prof. Yamabe?s hypothesis is a serious alternative. [5.2.2.] An important point is that in the Yogācārabhūmi we come across two fundamentally different concepts of ālayavijñāna, the starting point for the change being, probably, the fifth chapter of the Sa?dhinirmocanasūtra. [5.3.] As for ‘idealism’, we may have to distinguish two strands, which, however, tend to merge. [5.3.1.] The earlier one uses the concept cittamātra and emerges as early as in the Pratyutpanna-buddha-sa?mukhāvasthita-samādhi-sūtra in connection with an interpretation of visions of the Buddha Amitāyus. [5.3.2.] The later strand introduces the concept vijñaptimātra and seems to have originated in the eighth chapter of the Sa?dhinirmocanasūtra in connection with a reflection on the images perceived in insight meditation. [5.3.3.] In texts like the Mahāyānasūtrāla?kāra, concepts from other Mahāyānasūtra strands (like abhūtaparikalpa) become prominent in this connection, and it is only in the Mahāyānasa?graha that the use of vijñaptimātra is finally established.     

Late Sanskrit Literary Theorists and the Role of Grammar in Focusing the Separateness of Metaphor and Simile

The present paper is focused on the way Vayākara?as and āla?kārikas analysed a specific kind of karmadhāraya compounds, taught in A??ādhyāyī 2.1.56 and 72 and later associated with the upamā- and the rūpaka-figures respectively. On the basis of a fresh interpretation of the relevant grammatical sources, the authors try both to understand how the theorists involved them in their analysis and to reconstruct the several steps of the inquiries realized by the modern scholarship on this topic. Nonetheless their research is targeted on the interpretation of these two Pā?ini rules and they conclude that these rules do not actually target similes and metaphorical identifications, but, on the one hand, A 2.1.55-56 deal with a functional pair of figurative compounds involving an upamāna and an upamita, i.e. a reference standard and something which is benchmarked, and, on the other, A 2.1.72 closes a series of karmadhāraya-rules, aimed at illustrating A 2.1.57. Furthermore, they exclude that Pā?ini in A 2.1.55-56 used the term sāmānya as a tertium comparationis, even though Patañjali had already advanced—but eventually rejected—this interpretation.     

设立投资仲裁上诉机制的路径选择

目前,各国就投资仲裁上诉机制改革提交给联合国国际贸易法委员会第三工作组的建议主要有两种模式,分别是设立多边投资法院上诉机制和设立常设多边上诉机制。相对于多边投资法院,常设多边上诉机制更具有正当性与可行性。常设多边上诉机制对仲裁裁决一致性、可预测性和正确性的保障依托于具体规则的建立。一方面,上诉机制的审查范围应涵盖法律适用和事实认定错误以及程序性错误,以确保全面实现上诉机制的纠错功能;另一方面,应将事实认定上的错误限于“明显错误”,以提高仲裁效率。虽然遵循先例尚未成为国际仲裁实践的一般性原则,不能要求常设多边上诉机构在仲裁裁决中遵循既往裁决以提高裁决的一致性、连贯性和可预测性,但是WTO司法实践中发展形成的事实上的遵循先例也可以被常设多边上诉机制所借鉴。     

Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures

The recent decisions of the panel and Appellate Body in Brazil– Measures Affecting Imports of Retreaded Tyres touchedupon a number of issues of ongoing significance to the applicationof necessity tests, such as those in Article XX of the GeneralAgreement on Tariffs and Trade. This article argues that thedispute represents a mixed outcome for the application of necessitytests. The express recognition that some regulatory measuresare complementary to one another rather than reasonably availablealternatives constitutes a welcome step forward. On the otherhand, the panel's characterization of Brazil's regulatory goalhighlights an approach common to a number of panel reports thatcould justify a perception of arbitrariness in application ofnecessity tests. Similarly, comments made by the Appellate Bodyto the effect that a panel is obliged to consider the importanceof a state's regulatory goal extend the role of a panel in anunjustifiable manner.