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Accession to the World Trade Organization

A Legal Analysis

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.
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Index

A Legal Analysis

Dylan Geraets

accession commitments

Accession Commitments Database (ACDB) 206–7

additional 62

anti-dumping 249–53

‘best-efforts’ type 301

categorization of

anti-dumping investigations, allowing methodologies of other WTO Members 224–7

conformity, ensuring 214–15

efforts to categorize in protocols of accession 205–7

implementing WTO obligations and bringing measures into conformity with 215–23

‘prohibitions’ 227–8

transitional periods and special and differential treatment 213–14

China 112, 113, 173, 222, 272, 276, 284, 290, 301, 302

establishing 17–18

GATT 1947 17–18

goods 90–92

incorporation by reference into protocols of accession 118

interpretation in protocols of accession 4

Kazakhstan 233, 236, 237–8, 283, 286, 289, 298

legal basis for rules commitments 138–40

legal status in Working Party reports 116–18

non-market economies (NMEs) 248–9

relationship between commitments in protocols of accession and WTO Agreement 132, 138–97

Article XX of GATT 1994 140–91

relevance of protocols of accession for the interpretation of other agreements 195–7

rights for other WTO Members in protocols of accession 191–3

waivers in protocols of accession 193–5

rules see rules commitments

Russian Federation 223, 236, 237, 283, 286, 289

services 92, 94, 223

Tajikistan 225, 238, 272, 284, 301, 302

typology 204, 212–28

Ukraine 232, 236, 289, 295

Viet Nam 225, 236–7, 272, 277, 284, 295, 302

‘accession package’ 3–4, 70, 71, 312

contents 62, 87

negotiations 97

protocols of accession 87–9

Schedules of Concessions 90

Working Party Reports (WPRs) 62, 88, 89

ACDB (Accession Commitments Database) 206–7

acquiescence doctrine 137

ADA see Anti-Dumping Agreement (ADA)

Ad-Hoc Tariff Procedures Sub-committee 37, 38

Advisory Centre on WTO Law (ACWL) 317–18

Afghanistan 7, 207, 213, 280, 320

African countries, accession to GATT 45

Aggregate Measurement of Support (AMS) 91

Agreement Establishing the World Trade Organization see WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994)

Agreement on Customs Valuation 213, 218, 235

Agreement on Government Procurement (GPA) 81, 219

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) see Anti-Dumping Agreement (ADA)

Agreement on Import Licensing Procedures 148

Agreement on Preshipment Inspection 148

Agreement on Rules of Origin 31

Agreement on Subsidies and Countervailing Measures see SCM Agreement (Agreement on Subsidies and Countervailing Measures) 91–2

Agreement on the Trade-Related Aspects of Intellectual Property Rights see TRIPs Agreement (Agreement on the Trade-Related Aspects of Intellectual Property Rights)

Agreement on Trade Facilitation (TFA) 149

Agreement on Trade in Civil Aircraft 219–20

Agreement on Trade-Related Investment Measures see TRIMs (Trade-Related Investment Measures) Agreement

agricultural support and export subsidies 91–92

Annecy Protocol, GATT 1947 37

Antidumping Manual of the United States Department of Commerce (USDOC) 254, 265

Antidumping (AD) Code 1967 76

Anti-Dumping Agreement (ADA) 193, 215, 224–5

see also Antidumping (AD) Code 1967; anti-dumping investigations/proceedings; NMEs and anti-dumping investigations

alleged infringement 272

and non-market economies 249–50, 259, 261–2, 263, 265, 269, 270

anti-dumping investigations/proceedings

see also Anti-Dumping Agreement (ADA)

accession commitments 249–53

Basic Anti-Dumping Regulation (EU) 253–4, 255, 258, 261–3

economic characterization of a state 50

individual margins of dumping 225

and NMEs see NMEs and anti-dumping investigations

other WTO Members, allowing different methodology 224–7

price comparability in determining subsidies and dumping 225–6

in United States 254–5

Antigua 45

Appellate Body (WTO) 5, 97, 109, 130, 137

see also dispute settlement system (of WTO); Table of Cases; WTO (World Trade Organization); WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994)

and Article XX of GATT 1994 142, 143, 145, 169–72, 174–6, 178, 180–84, 188–9

characterization of protocols of accession as integral parts of WTO Agreement 99, 113, 116, 120, 122–3, 129

criticism of 98, 119, 129, 174, 199, 315

interpretative approach 5, 118, 174, 190–91, 199, 203

and membership of the WTO 59, 64

on non-market economies (NMEs) 256–7, 265, 271

pragmatic approach of 120, 310

relationship between commitments in protocols of accession and WTO Agreement 142, 143, 145

and relevance of protocols of accession for interpretation of other instruments 195–6

subsequent agreement concept 134, 135

applicable law, dispute settlement 108–9

Argentina 43

Armenia 216, 220, 247

Article XX of GATT 1994 5, 99, 137, 199, 287, 314, 315

see also GATT 1994 (General Agreement on Tariffs and Trade 1994)

balancing rights and obligations arising from protocols of accession with covered agreements 186–91

export duties 275, 276, 278

general exceptions see general exceptions, Article XX of GATT 1994

Panel reports 141–2, 144, 168–9, 173, 174, 176–7, 180

protocols of accession

balancing rights and obligations with covered agreements 186–91

references to Article XX in 150–68

relationship between commitments in and WTO Agreement 139, 140–91

and WTO dispute settlement 168–85

references to 151–67

in protocols of accession 150–68

in WTO agreements 148–9

relationship between commitments in protocols of accession and WTO Agreement 139, 140–91

discrimination test 145–6

exhaustible natural resources concept 143, 144

two-tier test 145

three-tier test 143, 144

scope of application 99, 146–68

substance of 99, 140–46

Asia-Pacific Economic Cooperation (APEC) 60

Bali Ministerial Conference (2013) 65, 67, 81

Barbuda 45

baseline obligations in WTO Agreement 6, 74–5, 311

mapping exercise 204, 211, 212–13, 264

Belize 45

Botswana 45

Bretton Woods Conference (July, 1944)/framework 11, 12

Brexit (vote for UK leaving the EU), 2016 1

Buenos Aires Ministerial Conference (December 2017) 65

Bulgaria 222, 274, 275, 284

Cambodia 248

Cancún Ministerial Conference (September 2003) 65, 66

Cape Verde 223, 286

categorization of acceding countries

GATT 1947 47–52

former colonies 37, 47, 72

non-market economies (NMEs) 47–52

NMEs (non-market economies) 296–7

Central and Eastern European countries 49, 51

Chile 41

China

accession bid to WTO (2001) 29

agricultural sector, benefits of WTO accession on 28

bilateral agreements with US 64

commitments 112, 113, 173, 222, 272, 276, 284, 290, 301, 302

disputes involving 110–11, 112, 118, 121

foreign direct investment (FDI) 290

as NME 247

protocol of accession 88, 89, 111, 112, 118, 128, 195, 199, 209, 223, 226

anti-dumping measures 225, 250, 251, 252, 272

export duties 276

non-market economies (NMEs) 256, 257–8

quest for market economy status 267, 268

relationship between commitments in protocols of accession and WTO Agreement 150, 169, 170, 173, 174, 177–9, 183–5

status 192

Transitional Product-Specific Safeguard Mechanism (TPSSM) 245, 248

transitional safeguards 191–2, 240

WTO-Plus obligations 205

quest for market economy status 267–73

state-owned enterprises (SOEs) 222

transitional safeguards 240, 243

and United States 64, 113, 244, 266–7

Working Party Report 113, 150, 193, 222, 276

WTO challenge against anti-dumping practices in December 2016 266–7

Colombia 45, 141–2

colonies, former 37, 47, 72

commitments see accession commitments

Committee on Regional Trade Agreements (CRTA) 298

Convention of International Union for the Protection of New Varieties of Plants 220

‘Copenhagen Criteria’ 49

‘covered’ agreements 107–8, 109

balancing rights and obligations with 186–91

critical mass agreements 33, 35

Croatia 276, 277, 284, 301

Cuba 51

customs valuation 6, 213, 218, 235

Czechoslovakia 50, 51

developing country Members 79, 209

see also LDCs (Least-Developed Countries)

capacity issues 316, 319

technical barriers to trade (TBTs) 286–7

differential export tax (DET) 271

discrimination test

arbitrary discrimination 145, 146

Article XX of GATT 1994 145–6

non-discrimination principle 14–20, 22, 27

unjustifiable discrimination 145–6

dispute settlement system (of WTO)

see also Appellate Body (WTO); WTO Agreement (Agreement Establishing the World Trade Organization) (15 April 1994)

conflict, notion of 130–31

Dispute Settlement Body see DSB (Dispute Settlement Body), WTO

Dispute Settlement Understanding see DSU (Understanding on Rules and Procedures Governing the Settlement of Disputes)

enforceability of protocols of accession under 98, 105–38, 313–15

absence of enforceability arguments 112–16

interim conclusions 118–19

judicial activism issues 105–6

legal status of commitments in Working Party Reports 116–18

legal theory of enforceability 119–38

involving protocols of accession 110–19

multilateral nature 137

Panel reports 97, 111, 113–18, 120, 122, 137

as quasi-judicial system 81

‘reversed-consensus’ rule 21

and Vienna Convention 98, 109, 115, 121, 127, 128

Working Party Reports (WPRs) 112–14, 116–18

Dispute Settlement Understanding see DSU (Understanding on Rules and Procedures Governing the Settlement of Disputes)

Doha Development Agenda 319–20

Doha Development Round (2001) 32–34, 80, 81

Doha Ministerial Conference (November 2001) 65, 66, 80

Doha Ministerial Decision on Implementation-Related Issues and Concerns 135

Draft Annecy Protocol of Terms of Accession to the General Agreement on Tariffs and Trade 37

DSB (Dispute Settlement Body), WTO 4, 5, 21, 79

jurisdiction 86, 121

DSU (Understanding on Rules and Procedures Governing the Settlement of Disputes)

see also dispute settlement system (of WTO)

Article 1.186, 126

Article 3.2105, 108, 189

Article 11 108, 119

Article 19.2106, 189

as Annex 2 to WTO Agreement 107

Appendix 186–87, 107–8, 109, 134, 180

applicable law 108–9

‘covered’ agreements 107–8, 109

functions provided in 79

jurisdiction 107–8

references to protocols of accession in 86–7

and Vienna Convention 109

EAEU see Eurasian Economic Union (EAEU)

Eastern European countries 51

see also specific countries, such as Russian Federation; Ukraine

economic motives for WTO accession 23–8

country- and sector-specific impacts 27–8

foreign direct investment (FDI) 26–7, 33

non-discrimination 27

trade increases 23–6

economic policies 231–4

Ecuador 87, 297

embedded liberalism 248

enforceability of protocols of accession 100–138

see also accession commitments

under GATT regime 100–105

judicial activism issues 105–6

legal theory 98, 119–38

acquiescence doctrine 137

Article XII of WTO Agreement, under 126–7

interim conclusion 136–8

protocols of accession as an amendment or modification of WTO Agreement 123–5

protocols of accession as an integral part of WTO Agreement 99, 120–23

protocols of accession as subsequent practice or agreement 121, 132–6

protocols of accession as successive treaty relating to same subject matter 127–32

under WTO dispute settlement system 105–38

absence of enforceability arguments 112–16

DSU 107–9

interim conclusions 118–19

involving protocols of accession 110–19

legal status of commitments in Working Party Reports 116–18

legal theory 119–38

Estonia 275, 276, 277, 284, 290

Eurasian Economic Union (EAEU) 237, 238, 299

European Commission 49

European Councils 49

European Law Students’ Association (ELSA) 319

European Union (EU)

accession process 48–9

Basic Anti-Dumping Regulation 253–4, 255, 258, 261–3

challenges against the treatment of NMEs, in anti-dumping investigations 255–64

China’s quest for market economy status in 267–73

China’s WTO challenge against anti-dumping practices in December 2016 266–7

trade defence instruments reform 267–73

existing legislation exception (‘grandfather clause’), GATT regime 100–105, 198

export duties 273–85

export subsidies 91–2

externalities of WTO accession 29–32

foreign direct investment (FDI) 289–91

investment regime 290

as motive for WTO accession 26–7, 33

trading rights 290–91

TRIMs 291

and WTO accession 26

founding parties see under GATT 1947 (General Agreement on Tariffs and Trade 1947)

future developments 316–20

trade defence instruments reform 267–73

universal membership 316–20

WTO accession process reform 65–9

GATS (General Agreement on Trade in Services) 73, 148, 218, 222, 297, 299

framework for making and enforcing policies 235, 236

policies affecting trade in services 294, 297

Schedule of Specific Commitments annexed to 89

GATT 1947 (General Agreement on Tariffs and Trade 1947)

Annecy Protocol 37

Article I 16, 17

Article I(1) 15

Article II 14–15, 16, 17

Article III 15, 16, 17

Article VI, Article VI:1 263

Article XI 103, 104

Article XXIII 37

Article XXIV:2 37

Article XXV 37

Article XXV:5101

Article XXVI 37

Article XXVI:5(c) 37, 40, 42–5, 47, 69, 72, 97

Article XXXIII 21, 37–40, 41, 42, 51, 69, 72, 97, 246

Preamble 14, 16

Part I 14

Part II 14

Part III 14

becoming a Contracting Party to 37–52

beginnings 41–6

categorization of acceding countries 47–52

joining GATT as accession or succession 37–40

categorization of acceding countries 47–52

former colonies 37, 47, 72

non-market economies (NMEs) 47–52

commitments, establishing 17–18

Contracting Parties 1, 2, 4, 37–52, 308

and multilateral trading system 13, 14, 15

original 14, 39, 51, 69, 72

and WTO 20, 21

creation 19, 22

drafting of 37, 51

early multilateral trading system 13–20

entry into force 13

foreign policy objectives 18–20

founding of 2

‘grandfather clause’ (existing legislation exception) 100–105, 198

growth in membership

in 1950s 42

in 1960s 43–4

in 1970s 44–5

in 1980s 45

in 1990s 46–7

and the ITO 12–13, 75

limitations of 83

Most-Favoured-Nation (MFN) treatment 15, 17

National Treatment principle 15–16

negotiations 2, 13, 37, 50, 73

New York Conference 1947 37

non-discrimination principle 14, 14–20

non-market economies (NMEs) 245–7

‘open-door’ policy 69–70

original Contracting Parties 41

Panel reports 2, 20, 100–105

Preamble 246

Protocol of Provisional Application (PPA) 13–14, 41, 102–3

rationale underpinning 14–20

reciprocity principle 14–20

relationship with GATT 1994 20, 146–7

rules 20

signature of Final Act 41

tariff reduction agreement, perceived as 2

terms-of-trade losses, avoiding 16–17

text 146–7

Working Party on Accession 37

World Trade Organization succeeding 1, 20

GATT 1994 (General Agreement on Tariffs and Trade 1994)

Ad Note to Article VI:1 50, 51, 256, 259, 260, 262, 263, 266

Article I 147, 191, 278

Article I:1 283, 284

Article I(a) 20–21

Article II 191

Article III 112, 140, 191, 217, 288, 291

Article V 233

Article VI 249, 250, 252, 264

Article VI:1 50, 256, 259, 260, 262, 263, 269

Article VI:2 193

Article VIII 276, 280

Article X 217, 218, 236

Article X:1 31

Article X:2 235

Article XI 274

Article XI:2(a) 275

Article XIX 240

Article XVII 221, 222–3

Article XVII:1(b) 222

Article XX see Article XX of GATT 1994

Article XXIV 299

Article XXIV:8 283

Article XXVIII 279

Article XXXIII 3, 70

Introductory Text 85–6

references to protocols of accession in 84–6

relationship with GATT 1947 20, 146–7

Schedule of Concessions and Commitments annexed to 89

GATT regime

see also GATT 1947 (General Agreement on Tariffs and Trade 1947); GATT 1994 (General Agreement on Tariffs and Trade 1994)

enforceability of protocols of accession under 100–105

Harmonized System 195–6

impact on trade 24, 25

General Agreement on Tariffs and Trade 1947 see GATT 1947 (General Agreement on Tariffs and Trade 1947)

General Agreement on Trade in Services (GATS) see GATS (General Agreement on Trade in Services)

General Council of WTO 62, 79, 80

general exceptions, Article XX of GATT 1994 99, 137, 171, 198, 199, 314, 315, 318

see also Article XX of GATT 1994; existing legislation exception (‘grandfather clause’), GATT regime; GATT 1994 (General Agreement on Tariffs and Trade 1994); protocols of accession

export duties 276, 278–9, 284

relationship between commitments in protocols of accession and WTO Agreement 140, 141

balancing rights and obligations with covered agreements 187, 188, 190

protocols of accession and WTO dispute settlement 174, 177, 178, 184

scope of application of Article XX 148, 149

Geneva Ministerial Conference (December 2009) 65, 67

Geneva Ministerial Conference (December 2011) 65, 67

Geneva Ministerial Conference (May 1998) 65

Georgia 216, 247, 276, 277, 284

Germany 100–101

Ghana 42

global value chains (GVCs) 244, 319

goods, policies affecting trade in 240–89

see also services

export duties 273–85

NMEs, and anti-dumping investigations 245–73

SPS Agreement 287–9

TBT Agreement 285–7

transitional safeguards 240–45

goods commitments 90–92

governance, improved 27, 32, 33, 34, 320

‘grandfather clause’ (existing legislation exception), GATT regime 100–105, 198

gross domestic product (GDP) 24

Haiti 42

Havana Charter, ITO 12, 14, 49–50

historical institutionalism 62

Hong Kong 45

Hong Kong Ministerial Conference (December 2005) 65, 66–7

Hungary 27

Contracting Party, becoming 51, 52, 70

Iceland 43

Indonesia 40, 42

information technology, liberalization 80–81

institutional structure of the WTO 5, 79–80

interface principle 248

International Law Commission (ILC) 133

International Monetary Fund (IMF)

accession to 69

creation 11

goals 11–12

International Trade Organization (ITO) 2, 37, 75

and GATT 1947 12–13, 75

Havana Charter 12, 14, 49–50

International Union for the Protection of New Varieties of Plants (UPOV) 220, 221

interpretative approach

as all-purpose response 120–21

of Appellate Body 5, 118, 174, 190–91, 199, 203, 314

‘textualist’ 188, 190

interventionist policy 270, 272

Ireland 43

Israel 43

ITO see International Trade Organization (ITO)

Jordan 289

judicial activism 105–6

jurisdiction, and dispute settlement 107–8

and DSB 86, 121

Kazakhstan 7, 168, 207, 238, 248, 290, 318

commitments 233, 236, 237–8, 283, 286, 289, 298

economic policies 231–2

waivers in protocols of accession 193, 194, 195

Working Party Report 231, 233, 238, 279, 299

Kennedy Round 76, 83

Korea 43

Lao PDR 223, 293

Latvia 275, 284

lawmaking, in protocols of accession 309–13

LDCs (Least-Developed Countries) 26, 78, 209, 316, 318, 319, 321

accession difficulties 68–71

Guidelines for the Accession of LDCs 68, 71

Least-Developed Countries and Accessions Programme 316

technical barriers to trade (TBTs) 286–7

transitional periods 68, 214, 289

legal theory

enforceability of protocols of accession 98, 119–38

acquiescence doctrine 137

Article XII of WTO Agreement, under 126–7

interim conclusion 136–8

protocols of accession as an amendment or modification of WTO Agreement 123–5

protocols of accession as an integral part of WTO Agreement 99, 120–23, 129

protocols of accession as subsequent practice or agreement 121, 132–6

protocols of accession as successive treaty relating to same subject matter 127–32

legality, versus legitimacy 4

legalization of multilateral trading system 72–5

Lesotho 45

liberalization of trade 2, 4, 32, 49, 139, 239

multilateral trading system 73, 75

NMEs and GATT 1947 245–6, 247

Liberia 7, 207, 290

Malaysia 42

Maldives 45

mapping exercise 6–7, 203–29

categorization of commitments

anti-dumping investigations, allowing methodologies of other WTO Members 224–7

conformity, ensuring 214–15

implementing WTO obligations and bringing measures into conformity with 215–23

‘prohibitions’ 227–8

transitional periods and special and differential treatment 213–14

implementing WTO obligations and bringing measures into conformity with 215–23

internal taxes 216–17

international agreements 219–21

state-owned enterprises 221–3

transparency 217–19

numbers 207–11

protocols of accession, efforts to categorize commitments in 205–7

results 230–303

economic policies 231–4

foreign direct investment (FDI) 289–91

framework for making/enforcing policies 234–40

goods, policies affecting trade in 240–89

protocols of accession, rules commitments in 230

services, policies affecting trade in 294–7

trade agreements 297–300

TRIPs Agreement 291–4

scope 207–12

substance of 211–12

typology of accession protocol commitments 204, 212–28

market economy

China’s quest for market economy status 267–73

missing terminology in GATT 1947 and WTO Agreement 49, 246

Marrakesh Agreement see WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994)

Mauritius 44

membership of GATT 2, 3

see also GATT 1947 (General Agreement on Tariffs and Trade 1947)

evolution of 33, 36, 42–7

countries joining in 1950s 42

countries joining in 1960s 43–4

countries joining in 1970s 44–5

countries joining in 1980s 45

countries joining in 1990s 46–7

First Admission Case 47–8

impact on trade 24, 25

original Contracting Parties 33, 97

membership of the WTO 3, 4, 6

see also WTO (World Trade Organization); WTO accession; WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994)

development 52–3

new WTO members in the 2000s 53

new WTO members in the 2010s and beyond 54–5

new WTO members the 1990s 53

growth in membership from 1995 to 2016 3

impact on trade 24, 25

multi-tiered 4, 6, 74, 75, 308–9

non-original Members 60, 68, 77, 82, 84, 97, 98, 99, 121, 139, 185, 210, 276, 308, 309, 310, 313

original Members 59–60, 61, 74, 82, 84, 99, 291, 307, 308, 309

two-tiered 73, 93, 139

WTO Agreement 82

Mexico 45

MFN see Most-Favoured-Nation (MFN) treatment

Mill, John Stuart 19

Ministerial Conferences of the WTO 62, 65–9, 79, 124, 125

Bali (2013) 65, 67, 81

Buenos Aires (December 2017) 65

Cancún (September 2003) 65, 66

Doha (November 2001) 65, 66

Geneva (December 2009) 65, 67

Geneva (December 2011) 65, 67

Geneva (May 1998) 65

Hong Kong (December 2005) 65, 66–7

Nairobi (2015) 67–9

Seattle (November–December 1999) 65

Singapore (December 1996) 65

Mongolia 275

Montenegro 232, 278, 284, 296, 301

Morocco 45

Most-Favoured-Nation (MFN) treatment 15, 17, 239, 284

rationales for WTO accession 23, 27

Multilateral Trade Agreements (annexed to WTO Agreement) 17, 21, 198, 246

see also trade agreements; WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994)

commitments in protocols and WTO Agreement, relationship between 177–80

and DSU 107–8, 115

joining the WTO 56–60, 68

mapping exercise 214, 227

and protocols of accession 136

relationship between commitments in protocols of accession and WTO Agreement 182, 183, 184, 185, 187, 189

and WTO Agreement 82, 83

multilateral trading system 72–94, 75, 308

see also GATT 1947 (General Agreement on Tariffs and Trade 1947); GATT 1994 (General Agreement on Tariffs and Trade 1994); WTO (World Trade Organization)

‘accession package’ see ‘Accession Package’

Annex I Agreements 3

commitments see accession commitments

creation 11, 18

early period 11–20, 39

‘entry fee’ to 97, 114, 204, 321

as forum 25–6

institutional features 36

International Trade Organization 12–13

legalization 72–5

liberalization of trade 73, 75

motivations for joining 28

see also rationales for WTO accession

participation of NMEs in 50

Punta del Este Declaration 1986 76–7

reasons for establishing 19

recommendations for states seeking to become part of 317–18

rules-based 1

single undertaking, WTO built upon 3, 75–93

unique nature of accession to 69

WTO Agreement see WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994)

WTO study 207

multi-tiered membership, of WTO 4, 6, 308–9

Nairobi Ministerial Conference (2015) 67–9

National Treatment principle 15–16, 27

negotiations

GATT 1947 2, 13, 37, 50, 73

trade agreements 299–300

trust-building 26

WTO accession 35, 73

WTO Agreement 80–81

Nepal 216

New York Conference (1947) 37

NMEs (non-market economies) 27, 231

see also WTO accession

and anti-dumping see NMEs and anti-dumping investigations

categorization of acceding countries 296–7

commitments of 248–9, 321

and GATT 1947 47–52, 245–7

imports from 50, 225, 253, 254, 257, 265

methodologies 145–73, 264, 269

participation in multilateral trading system 50, 52

as planned-economy countries 50

in the WTO 247–73

NMEs and anti-dumping investigations 245–73

see also anti-dumping investigations/proceedings

accession commitments on anti-dumping 249–53

challenges against the treatment of NMEs 253–66

against the EU 255–64

against the US 265–6

China’s WTO challenge against anti-dumping practices in December 2016 266–7

non-discrimination principle

benefits of non-discrimination 27

energy sector 232

GATT 1947 14–20, 22

non-market economies (NMEs) see NMEs (non-market economies)

non-observer states (non-accessions) 55–6

non-tariff barriers (NTBs) 2, 73, 83, 239

Norway 103

notice-and-comment procedures 236, 239, 288

NTBs (non-tariff barriers) 2, 73, 239

Oman 220, 222

planned-economy countries (PECs), terminology 50

see also non-market economies (NMEs)

plurilateral trade agreements (PTAs) 22, 33, 35, 230

Poland 27, 40

Contracting Party, becoming 43, 51, 52

policies

domestic framework 6

economic 231–4

framework for making and enforcing 234–40

goods, affecting trade in 240–89

market-oriented 27

services, affecting trade in 294–7

trade, prior to Second World War 2

political motives for WTO accession 28–9

Portugal 43

preferential trade agreements (PTAs) 22

pre-shipment inspection 6

Principles of Political Economy (Mill) 19

production networks, international 33

‘prohibitions,’ accession commitments 227–8

protectionism 2, 234

Protocol of Provisional Application (PPA), GATT 1947 13–14, 41

dispute settlement 102–3

protocols of accession 97–199

see also accession commitments; WTO accession; WTO Agreement and protocols of accession

‘accession package’/process 62, 87–9

as amendment or modification of the WTO Agreement 123–5

China 88, 89, 111, 112, 118, 128, 195, 199, 226

anti-dumping measures 225, 250, 251, 252, 272

export duties 276

mapping exercise 209, 223

non-market economies (NMEs) 256, 257–8

quest for market economy status 267, 268

relationship between commitments in protocols of accession and WTO Agreement 150, 169, 170, 173, 174, 177–9, 183–5

status 192

Transitional Product-Specific Safeguard Mechanism (TPSSM) 245, 248

transitional safeguards 191–2, 240

WTO-Plus obligations 205

efforts to categorize commitments in 205–7

enforceability see enforceability of protocols of accession

as integral part of WTO Agreement 99, 113, 116, 120–23, 129, 192, 198

interpretation of commitments in 4

lawmaking in 309–13

non-market economies (NMEs) 193

references to

in the DSU 86–7

in the GATT 1994 84–6, 150–68

in the WTO Agreement 83–4

relevance for the interpretation of other agreements 195–7

rights for other WTO Members in

NME methodologies 193

transitional safeguards 191–3

Russian Federation 278, 300

Spain 101–2

structure 88, 89

as subsequent practice or agreement 132–6

as a successive treaty relating to same subject matter 127–32

transitional safeguards 191–3

waivers in 193–5

in WTO dispute settlement see dispute settlement system (of WTO)

PTAs see plurilateral trade agreements (PTAs)

Punta del Este Declaration 1986 76–7

quantitative restrictions 6

rationales for WTO accession 22–34

economic motives 23–8

externalities 29–32

governance, improved 27

market-oriented policies 27

political motives 28–9

reciprocity principle, GATT 1947 14–20

reform proposals, WTO accession process 65–9

Regional Comprehensive Economic Partnership 23

regional trade agreements (RTAs) 22, 32–4, 60, 81, 298, 315

regionalization, accession in times of 32–4

regulatory cooperation 239

‘reversed-consensus’ rule 21

Romania 27, 309

Contracting Party, becoming 51, 52, 70

RTAs see regional trade agreements (RTAs)

rule of law 6, 320

dispute settlement system (of WTO) 121, 125

mapping exercise 198, 234–5, 247

rationales for WTO accession 26, 31

rules commitments 4, 73, 92–3, 205, 230, 286

legal basis for 138–40

see also accession commitments

Russian Federation 137, 181, 317, 318

commitments 223, 236, 237, 283, 286, 289

export duties 278, 284

protocol of accession 209–10, 278, 300

Schedule of Concessions and Commitments 278

Samoa 290

sanitary and phytosanitary measures (SPS) 6, 287–9

see also SPS Agreement (Agreement on the Application of Sanitary and Phytosanitary Measures)

Saudi Arabia 167, 181, 289, 290, 295

export duties 276–7, 284

Schedules of Commitments 62, 89

Schedules of Concessions 62, 89, 90

SCM Agreement (Agreement on Subsidies and Countervailing Measures) 112, 172, 315

and Article XX of GATT 1994 147, 171, 189

mapping exercise 214, 215, 223, 225, 250–52

Seattle Ministerial Conference (November–December 1999) 65

services

see also GATS (General Agreement on Trade in Services); goods, policies affecting trade in

liberalization of trade in 73

policies affecting trade in 294–7

Punta del Este Declaration 77

trade in 80

services commitments 92, 94, 223

Seychelles 218, 220

Singapore 44

Singapore Ministerial Conference (December 1996) 65

single undertaking, WTO built upon 3, 75–93, 311

dispute settlement 81

institutional structure of the WTO 79–80

membership of the WTO 82

see also membership of the WTO

negotiations 80–81

Punta del Este Declaration 1986 76–7

references to protocols of accession 83–7

in the DSU 86–7

in GATT 1994 84–6

in WTO Agreement 83–4

scope of the WTO 83

WTO Agreement 77–87

see also WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994)

Spain 43, 101–2

special and differential treatment 213–14

SPS Agreement (Agreement on the Application of Sanitary and Phytosanitary Measures) 93, 287–9

see also sanitary and phytosanitary measures (SPS)

and Article XX of GATT 1994 147, 148, 171

Committee 81

standardization of accession process 73

state interventionism 270, 272

state-owned enterprises (SOEs) 6, 221–3

subsequent agreement concept, protocols of accession 121, 132–6

subsidies 91–2

supply-chain trade 33, 35

Suriname 44

Switzerland 43, 100–101

Tajikistan 218, 220, 248, 250

commitments 225, 238, 272, 284, 301, 302

as market economy 253

Working Party Report 193, 223, 226, 251, 253, 292

Tariff Agreement Committee 37

tariffs

barriers, reducing 73, 78, 83

concessions 40, 62, 73, 91, 194

GATT 1947 perceived as a tariff reduction agreement 2

Most-Favoured-Nation (MFN) treatment 239

non-tariff barriers (NTBs) 2, 73, 83, 239

Non-Tariff Measures 52

renegotiations 194

tariff rate quotas (TRQs) 6, 283

taxation

differential export tax (DET) 271

export duties 273–85

internal 216–17

TBT Agreement (Agreement on Technical Barriers to Trade) 3, 135, 285, 285–7

see also technical barriers to trade (TBTs)

Committee 81

rules commitments 92–3

technical barriers to trade (TBTs) 6

see also TBT Agreement (Agreement on Technical Barriers to Trade)

Thailand 45, 104

Tokyo Round 52, 76, 83, 285

Tonga 290

TPP see Trans-Pacific Partnership (TPP)

TPSSM see Transitional Product-Specific Safeguard Mechanism (TPSSM)

trade

see also TRIMs (Trade-Related Investment Measures); TRIPs Agreement (Agreement on the Trade-Related Aspects of Intellectual Property Rights)

agreements see trade agreements

agricultural 27–8

foreign direct investment (FDI) 290–91

impact of GATT/WTO on 24, 25

liberalization of see liberalization of trade

as motive for WTO accession 23–6

policies affecting, in goods 240–89

pre-Second World War policy 2

relative to GDP 24

remedies 215

in services 80

supply-chain 33, 35

terms-of-trade losses, avoiding 16–17

Transatlantic Trade and Investment Partnership (TTIP) 22

trade agreements 68, 297–300

see also Multilateral Trade Agreements (annexed to WTO Agreement)

and joining the WTO 59, 60

plurilateral trade agreements (PTAs) 22, 33, 35, 230

preferential trade agreements (PTAs) 22

regional trade agreements (RTAs) 22, 32–4, 60, 81, 298, 315

21st Century Trade Agreements 239

Trade in Services Agreement (TISA) 23

trade-related aspects of intellectual property rights (TRIPs) 6

see also TRIPs Agreement (Agreement on the Trade-Related Aspects of Intellectual Property Rights)

Transatlantic Trade and Investment Partnership (TTIP) 22, 223, 230, 239, 287

Transitional Product-Specific Safeguard Mechanism (TPSSM) 242–5

and China 245, 248

transitional safeguards

goods, policies affecting trade in 240–45

protocols of accession 191–3

Trans-Pacific Partnership (TPP) 23, 60, 223, 230, 239

transparency obligations 6, 217–19

Treaty on the European Union (TEU) 48–9

TRIMs (Trade-Related Investment Measures) Agreement 112, 148, 213

foreign direct investment (FDI) 289, 291

TRIPs Agreement (Agreement on the Trade-Related Aspects of Intellectual Property Rights) 31, 93, 291–4

mapping exercise 213–14, 218, 221, 235

TRQs (tariff rate quotas) 6, 283

Truman, Harry S. 19

trust-building 26

TTIP see Transatlantic Trade and Investment Partnership (TTIP)

Ukraine 220, 311

commitments 232, 236, 289, 295

export duties 277, 284

Working Party Report 167, 168, 232, 237, 277, 311

UN Conference on Trade and Development (UNCTAD) 205

UN Conference on Trade and Employment 37

Second Session of the Preparatory Committee (1947) 41

Understanding on Rules and Procedures Governing the Settlement of Disputes see DSU (Understanding on Rules and Procedures Governing the Settlement of Disputes)

United Nations

accession to 69

Charter 47, 48

establishment (October, 1945) 12

UN Conference on Trade and Development 205

UN Conference on Trade and Employment 12, 41

United States 11, 309

anti-dumping legislation 254–5

challenges against the treatment of NMEs, in anti-dumping investigations 265–6

and China 64, 113, 244, 266–7

Uruguay 100–101

Uruguay Round of Multilateral Trade Negotiations (Uruguay Round) 2–3, 20, 21, 33, 36, 195

Agreements Act 266

completion 1, 46, 52, 56, 72, 146

impetus for 83

outcome 76–7

Punta del Este Declaration 1986 formally launching 76

Vanuatu 216, 217, 223

Vienna Convention on the Law of Treaties (1969)

Article 2 128

Article 30 127, 128, 130, 132, 135, 136, 180, 185, 187

Article 31 130, 132–3, 135, 144, 195, 196–7

Article 32 130

dispute settlement 98, 109, 115, 121, 127, 128

later-in-time rule 185

rules on treaty interpretation 132

Viet Nam 26, 216, 223, 225

commitments 225, 236–7, 272, 277, 284, 295, 302

NMEs and anti-dumping investigations 248, 250, 252, 272

protocols of accession, status 117–18, 121, 193

Working Party Report 193, 226, 237, 251, 252, 265

Wilcox, Clair 18–19, 50

Working Party Reports (WPRs)

‘accession package’ 62, 88, 89

accession process 62

Bulgaria 274

China 113, 117, 150, 174, 193, 222, 276

commitment paragraphs 208–9

GATT protocols of accession 104

Kazakhstan 231, 233, 238, 279, 299

Kyrgyz Republic 222

legal status of commitments in 116–18

Tajikistan 193, 223, 226, 251, 253, 292

taxation 217

transparency obligations 218

Ukraine 167, 168, 232, 237, 277, 311

Viet Nam 193, 226, 237, 251, 252, 265

WTO dispute settlement process 112–14, 116–18

Yemen 167

World Bank (WB)

accession to 69

creation 11

goals 11–12

World Trade Organization see WTO (World Trade Organization)

WPRs see Working Party Reports (WPRs)

WTO (World Trade Organization)

see also WTO accession

accession see WTO accession

Appellate Body see Appellate Body (WTO)

Committee on Regional Trade Agreements (CRTA) 298

countries not yet GATT Contracting Parties at time of establishment 57

dispute settlement see dispute settlement system (of WTO)

founding of (1995) 1, 20, 33, 52, 72, 76

functions 78–9

General Council 62, 79, 80

impact on trade 24, 25

institutional structure 5, 79–80

joining process 56–69

four-step 59–65

reform proposals 65–9

WTO Agreement 56–9

Least-Developed Countries and Accessions Programme 316

membership see membership of the WTO

Ministerial Conferences see Ministerial Conferences of the WTO

negotiations 80–81

NMEs in 247–73

objectives 77–8

Panel reports 97, 111, 113–18, 120, 122, 137, 299–300

protocols of accession see protocols of accession

references to Article XX of the GATT 1994 in agreements 148–9

scope 83

Secretariat 73

single undertaken, built upon 3, 75–93

succeeding of GATT 1947 1, 20

WTO accession

see also protocols of accession

‘accession package’ 3–4, 70, 71, 312

contents 62, 87

negotiations 97

protocols of accession 87–89

Schedules of Concessions 90

Working Party Reports (WPRs) 62, 88, 89

accession process

four-step 59–65

informality of 36, 60

reform proposals 65–69

standardization 73

tabular format 63

and agricultural sector 28

commitments see accession commitments

country- and sector-specific impacts 27–8

Doha Development Round (2001) 32–4, 80, 81

foreign direct investment (FDI) 26

impacts see impacts of accession

joining process 56–69

LDCs (Least-Developed Countries) see LDCs (Least-Developed Countries)

market access 73

negotiations 35, 73

non-GATT Contracting Parties 97

non-observer states (non-accessions) 55–6

in numbers 52–6

rationales for see rationales for WTO accession

regionalization, in times of 32–4

rules commitments 205

statistics 52–6

train track analogy 62

WTO Agreement (Agreement Establishing the World Trade Organization (15 April 1994) 77–87

Article II

Article II:1 78

Article II:2 83

Article II:4 85

Article III 78–9

Article III:2 80

Article III:3 81

Article IV

Article IV:2 79

Article IV:3 79

Article X 123–4, 125

Article XI 56–7, 82

Article XII 3, 5, 21, 56, 72, 82, 83, 84, 121, 124, 203–4, 221, 240, 246, 286, 292, 307, 310, 312

Article XII:1 57–60

Article XII:3 219

joining process 57–9, 61, 64, 70

as legal basis for enforcement 126–7

wording 70

Article XVI, Article XVI:4 235

Annex 2107

Annex 4219

accession conditions 69

Preamble 77–8, 246

baseline obligations see baseline obligations in WTO Agreement

creation 20

DSU as Annex 2107

Ministerial Decision on Acceptance of and Accession to 84

objectives of the WTO in Preamble 77–8

obligations, implementing and bringing measures into conformity with 215–23

internal taxes 216–17

international agreements 219–21

state-owned enterprises 221–3

transparency 217–19

and protocols of accession see WTO Agreement and protocols of accession

scope 105, 138

signature in Marrakesh 77

terms 82

Trade Negotiations Committee, Marrakesh 84

as an umbrella agreement 3, 83

World Trade Organization based on 4

WTO Agreement and protocols of accession

commitments, relationship between 132, 138–97

Article XX of GATT 1994, under 140–90

issues 140–97

legal basis for rules commitments 138–40

relevance of protocols of accession for the interpretation of other agreements 195–7

rights for other WTO Members in protocols of accession 191–3

waivers in protocols of accession 193–5

dispute settlement 168–85

integration clause 123

petitio principii fallacy 122

protocols of accession as an amendment or modification of WTO Agreement 123–5

protocols of accession as integral part of WTO Agreement 99, 112, 114, 116, 120–23, 129, 192, 198

references to protocols of accession in WTO Agreement 83–4

WTO-Minus obligations 6, 206, 228, 245, 302

see also WTO-Plus obligations

WTO-Plus obligations 6, 7, 58, 293, 301, 309

see also WTO-Minus obligations

export duties 279

mapping exercise 205, 212, 218, 234, 245

protocols of accession, status 187, 188, 199

Yemen 167, 223

Yugoslavia 27, 43, 51

Contracting Party, becoming 70

Zambia 45