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Dylan Geraets

Chapter 1 explores the rationale for the creation of a multilateral trading system in the aftermath of the Second World War. It examines the efforts for the creation of an International Trade Organization (ITO) and the use of the method of Provisional Application for the General Agreement on Tariffs and Trade 1947 (GATT 1947) and discusses the three theories that have been used to explain the creation of the GATT. Some of the additional rules obligations negotiated in the context of WTO protocols of accession might prove to be initial attempts to address the realities posed by 21st century ‘supply-chain’ trade. This chapter introduces one of the overarching questions addressed in this book, namely whether negotiations in the context of WTO accession have sometimes been a ‘rule-making laboratory’ in which the WTO has attempted to gradually reform some of the disciplines that currently underpin the organization.

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Dylan Geraets

This chapter examines the process of accession to the multilateral system as formed initially by the GATT 1947 and subsequently by the WTO. The purpose of the chapter is to find an answer to the question why the process of accession remained unaltered in the course of the Uruguay Round. It will be established that, contrary to many of the other institutional features of the multilateral trading system, such as dispute settlement, the process of accession was not formally ‘legalized’. After a descriptive exercise in which the evolution of the WTO membership is provided, attention turns towards the process of accession itself. Finally, the chapter discusses negotiating efforts aimed at simplifying the WTO accession process that took place at several Ministerial Conferences.

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Dylan Geraets

Chapter 3 examines the institutional characteristics of the WTO and the scope of the WTO Agreement. In the 1980s the Contracting Parties to the GATT 1947 realized that the rules contained in that agreement were no longer sufficient to adequately address the changing nature of international commerce. The enlarged scope of the WTO means that applicant states now also have to negotiate rules commitments that determine the way in which domestic legislation has to be amended in order to conform to the ‘baseline obligations’ laid down by the WTO Agreement. WTO Members that have acceded to the WTO have, in some instances, made commitments in their protocols of accession that exceed (or are more stringent than) these ‘baseline obligations’ as laid down in the WTO Agreement. Chapter 3 examines the WTO Agreement in order to determine the scope of these baseline obligations.

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Dylan Geraets

Chapter 4 analyses the status of protocols of accession in the legal framework of the WTO. It explores theories on the enforceability of commitments that are contained in these protocols. The role of WTO protocols of accession in WTO dispute settlement proceedings is examined in detail through an analysis of the available panel and Appellate Body reports that deal with commitments contained in protocols of accession. Chapter 4 also contains an in-depth analysis of the relationship between the commitments contained in acceded Members’ protocols of accession, including the working party reports, and the provisions contained in the Marrakesh Agreement and the Multilateral Trade Agreements. It explores, inter alia, whether the general exceptions contained in Article XX of the GATT 1994 are available to justify violations of commitments contained in protocols of accession.

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Dylan Geraets

Chapter 5 presents a typology that will enable an assessment of the type of commitments included in WTO protocols of accession. The chapter starts with an assessment of methodologies and typologies that have been put forward in scholarship for describing commitments in protocols of accession. A new, further refined typology is presented that will serve as the basis for the in-depth analysis of accession protocol commitments that will be presented in Chapter 6. In tandem with the presentation of the typology of accession protocol commitments, an overview is presented of which types of commitment constitute WTO-Plus obligations.

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Dylan Geraets

Chapter 6 presents the findings of the mapping exercise carried out in respect of the results of all 36 WTO accessions completed so far. Using the typology developed in Chapter 5, the commitments are analysed and examined in order to obtain a more precise picture of the scope and prevalence of the rules commitments that arguably exceed the WTO baseline. This chapter also examines to what extent certain commitments deviate from the baseline obligations in the WTO Agreement. Particular emphasis is placed on those commitments that exemplify new trends in international trade lawmaking. In areas such as technical barriers to trade, sanitary and phytosanitary measures and transparency, commitments have been undertaken that fit well within the current trend of focusing on concepts such as ‘regulatory cooperation’ in trade agreements such as the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP).

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Concluding remarks

A Legal Analysis

Dylan Geraets

Chapter 7 summarizes the main findings of this book. It reflects on the results of the mapping exercise and discusses the way in which the accession process has evolved. There are different categories of WTO Members with different levels of commitments made as part of their accession process. This is inherent in Article XII of the WTO Agreement, which refers to ‘terms to be agreed’. The concerns that have been raised in respect of the length and scope of the accession process have not resulted in a reduction in the applications for membership or a reduction in the use that has been made of the dispute settlement system. After considering the experience of the 36 Members that have acceded under Article XII of the WTO Agreement, Chapter 7 proposes general recommendations to take into account when submitting a WTO-accession bid.

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Selected bibliography

A Legal Analysis

Dylan Geraets

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Dylan Geraets

This detailed and perceptive book examines the extent and scope of how rules for accession to the WTO may vary between countries, approaching the concerns that some countries enter with a better deal than others. Dylan Geraets critiques these additional ‘rules’ and aims to answer the question of whether new Members of the WTO are under stricter rules than the original Members, whilst analysing the accession process to the multilateral trading system.