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The WTO Law of Subsidies: A Comprehensive Approach

The WTO Law of Subsidies: A Comprehensive Approach

  • 作者:
  • 出版商: Kluwer Law International
  • ISBN: 9789403503608
  • 出版时间 June 2019
  • 规格: Hardback
  • 适应领域: International ? 免责申明:
    Countri(es) stated herein are used as reference only

List Price: ¥1,794.90

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  • 描述 
  • 大纲 
  • 详细

    The WTO Law of Subsidies provides a comprehensive analysis of the law of subsidies under the WTO regime. Subsidies are arguably the dominant theme in International Economic Law and  a prolific case law has been elaborated by WTO Panels and Appellate Body in response to the multitude of complaints lodged in the past two decades (Softwood Lumber, Airbus, Boeing, etc.). The case law and  norms disciplining subsidies under the WTO legal regime are of utmost importance first for international trade ministries, parliaments, and international institutions (OECD, CNUCED, FAO, etc.). However, non-governmental organizations (World Wide Fund, etc.) are also directly concerned by this topic regarding, for example, fisheries subsidies and their impact on overexploitation of marine resources. The private sector (fishing fleets, fishermen, extractive industries, etc.) is also affected by this topic particularly regarding future investments.

    Unfortunately, it is possible to be overwhelmed by the complexity of this case law. Going through this complexity, this book offers highly strategic information to both complaining and defending parties on how to advance legally their interests. Actually, one of the major characteristics of this book is to address all legal subtleties without ever trying to avoid them.

    What’s in this book:
    This book is structured into three Parts, as follows:

    • Part I adopts the perspective of a WTO member seeking to counter an alleged subsidy granted by another Member. To this end, this Part scans all WTO Agreements containing cumulative disciplines and remedies relating to the granting of subsidies. Therefore, not only the SCM Agreement, but also the Agreement on Agriculture (AoA), GATT 1994, and even the 1980 Agreement on Trade in Civil Aircraft (ATCA) are scanned and analyzed in detail.
    • Part II adopts the perspective of a WTO Member accused of granting subsidies violating subsidies disciplines. To this end, an original classification is offered of the various strategies that can be used by such a Member. For this purpose, a distinction is made between the “threshold strategy” where the existence of a challengeable subsidy is recused from the outset by the accused Member, the “denying violation of disciplines strategy,” the “exemption or exception strategy,” the “procedural and evidentiary strategy,” and finally the “implementing strategy.”
    • Part III of this book, which could turn out to be the most useful for the community of agents concerned by subsidies, offers an original examination of pending legal issues. To this end, a relevant distinction is established between pending legal issues partially answered by present case law and pending legal issues not still answered by present case law.

    How this will help you:
    As the title of this book indicates, one of its notable aspects is that it is “comprehensive.” First, it avoids unnecessary legal jargon, making it accessible to a large public. Second, it adopts a progressive approach where legal subtleties are not avoided but presented at the right moment and the right place, thereby not overwhelming the reader. This peerless book is thus a source of strategic knowledge for practitioners, academics, students, policy makers in governments and international organizations. Law firms involved in subsidies cases are naturally at the forefront of the community of agents concerned by this topic.

  • List of Abbreviations

    Introduction

    PART I
    Scanning WTO Agreements for Cumulative Disciplines and Remedies to Counter an Alleged Subsidy Granted by Another Member (The Perspective of the Accusing Member)

    CHAPTER 1
    Defining the Set of Measures Subject to SCM Disciplines (So-Called “Specific Subsidies”)

    CHAPTER 2
    Various Subtleties Relating to the Three Criteria Defining a Specific Subsidy (i.e., Financial Contribution, Benefit, and Specificity)

    CHAPTER 3
    Satisfying Ex Ante, the Anti-distortion “Object and Purpose” of the SCM: Determining the Subset of Subsidies Subject to per se Disciplines (So-Called “Prohibited Subsidies”)

    CHAPTER 4
    Alternative Remedies under the SCM Agreement for a Violation of Obligations Relating to Prohibited Subsidies

    CHAPTER 5
    Satisfying Ex-Post, the Anti-distortion “Object and Purpose” in the SCM: Defining the Subset of “Actionable Subsidies” Based on Their Adverse Trade Effects

    CHAPTER 6
    Alternative Remedies under the SCM Agreement for a Violation of Obligations Relating to Actionable Subsidies

    CHAPTER 7
    Recourse to Countervailing Duties (CVDs) in the Domestic Forum of the Importing Country on the Basis That the Actionable Subsidies Are
    “Countervailable” and Not Because They Are Actionable

    CHAPTER 8
    Subtleties Relating to Actionable Subsidies

    CHAPTER 9
    How to Know If a Measure Is a “Subsidy” or an “Export Subsidy” under GATT 1994?

    CHAPTER 10
    GATT 1994 Per Se Disciplines

    CHAPTER 11
    GATT 1994 Effects-Based Disciplines

    CHAPTER 12
    Alternative Remedies under an (Unlikely) Exclusive GATT 1994 Claim Relating to a Non-agricultural Subsidy

    CHAPTER 13
    How a TRIMs Measure Could Involve a Subsidy

    CHAPTER 14
    Remedy under TRIMs for the Measure at Issue and Consequence for the Involved Subsidy

    CHAPTER 15
    Principal Subsidies Disciplines of the ATCA

    CHAPTER 16
    Remedies under the ATCA and Why the ATCA Is Not Invoked as a Basis of a Complaint About Civil Aircraft Subsidies

    CHAPTER 17
    What Is Behind the Expression “Export Subsidy” in the AoA?

    CHAPTER 18
    What Is Behind the Expression “Domestic Support” in the AoA?

    CHAPTER 19
    Per Se Disciplines in the Agreement on Agriculture

    CHAPTER 20
    GATT 1994 Disciplines Based on the Avoidance of Adverse Trade Effects

    CHAPTER 21
    Per Se Disciplines under Article XVI:4 of GATT 1994: A Discord Between Article XVI:4 of GATT 1994 and the AoA?

    CHAPTER 22
    The Appellate Body’s Clarification in US – Upland Cotton of the Meaning of the Expressions “Subject to” and “Except as Provided in the AoA”

    CHAPTER 23
    “EC Sugar”: Confirmation by the Appellate Body of the “Specific Provisions Dealing Specifically with the Same Matter” Doctrine

    PART II
    Scanning WTO Case Law for Strategies to Refute Violation of Subsidies Disciplines (The Perspective of the Accused Subsidizing Member)

    CHAPTER 24
    Invoking a Missing “Financial Contribution”

    CHAPTER 25
    The Threshold Strategy Through the Benefit Criterion (I)

    CHAPTER 26
    The Threshold Strategy Through the Benefit Criterion (II): “Pass-Through” of Benefit

    CHAPTER 27
    The Threshold Strategy Through the Contestation of the Specificity of the Measure at Issue

    CHAPTER 28
    Some Examples of the Threshold Strategy in the Context of a Complaint Invoking the Agreement on Agriculture

    CHAPTER 29
    Denying Violation of the Prohibition of “Contingency upon Export Performance”

    CHAPTER 30
    Denying Violation of the Prohibition of “Contingency upon the Use of Domestic over Imported Products”

    CHAPTER 31
    Contesting (in the CVD Context) That the Causal Link Between Subsidized Imports and Injury to A Domestic Industry Is Adequately Established

    CHAPTER 32
    Contesting (in a Non-CVD Context) That a Causal Relationship Has Been Demonstrated Between a Subsidy and Adverse Effects to the Interests of Other Members: The Paradox of a More Sophisticated Causality Analysis Than in a CVD Context

    CHAPTER 33
    Countering Successfully That There Was Not an Appropriate Matching by the CVD Authorities Between the Elements in the Numerator and The
    Elements in the Denominator When Calculating the Per-unit Subsidy Ratio

    CHAPTER 34
    Invoking Explicit Exemptions for Developing Countries (SCM Based Complaint)

    CHAPTER 35
    Invoking Implicit Exemptions (SCM Based Complaint)

    CHAPTER 36
    Arguing Successfully in EU – PET (Pakistan) That There Is No Exception to the Excess Remissions Principle When Determining How Remissions
    under Duty Drawback Schemes Are to Be Identified as Subsidies

    CHAPTER 37
    Invoking Unsuccessfully the Exception Strategy in the AoA: Does Article 10.2 of the AoA Exempts Agricultural Export Credits from the
    Export Subsidy Disciplines of the AoA?

    CHAPTER 38
    Rejecting Successfully That a Certain Measure Is Not a “Measure Taken to Comply” and Therefore Does Not Fall Within Article 21.5 Proceedings: The “Inextricable Link” or “Clear Connection” Test

    CHAPTER 39
    Arguing Unsuccessfully That the Original Recommendations and Rulings Do Not Remain Operative Through Compliance Panels Proceedings Unless New Recommendations Are Issued by These Panels: The Case of FSC Subsidies

    CHAPTER 40
    Arguing Unsuccessfully That Similar Payments Made after the Original Proceedings Are Beyond the Scope of Article 21.5

    CHAPTER 41
    Arguing Unsuccessfully Before an Article 21.5 Panel That, When an Article Covers Multiple Obligations, the Mere Listing of This Article in the Panel Request Is Sufficient for the Panel Request to Cover All These Obligations

    CHAPTER 42
    Attempting Unsuccessfully to Introduce in Compliance Proceedings a New Claim Relating to Unchanged Aspects of the Original Measure

    CHAPTER 43
    Arguing Successfully That If the Underlying Subsidy Has Ceased to Exist (And Therefore Has Been “Withdrawn” in a Passive Way), There Is No
    Additional Requirement, under Article 7.8 of the SCM, to Remove Any Lingering Effects That May Flow from That Subsidy

    PART III
    Scanning Pending Legal Issues in the Context of Present Norms

    CHAPTER 44
    Confirming a Narrow Interpretation of the Concept of “Price or Income Support”

    CHAPTER 45
    GATT Article XX Exceptions Carried Forward to Violations of the SCM and the AoA?

    CHAPTER 46
    Double Counting Hypothesis for Non-market Economies: Recent Recognition by the Appellate Body of Its Possibility When Concurrent Countervailing Duties and Antidumping Duties Are Levied (The Case of Domestic Subsidies)

    CHAPTER 47
    Confirming the Prospective Nature of WTO Remedies

    CHAPTER 48
    Calculating the Ratio of Per Unit Subsidization in CVD Proceedings: Could the Denominator Include the Subsidy Recipient’s Production
    Overseas? The US Washing Machines Jurisprudence

    CHAPTER 49
    Dual Pricing (Gas, Oil, Etc.): Not a Challengeable Subsidy Because the Specificity Criterion Is Probably Not Satisfied

    CHAPTER 50
    Final Clarification on Why Article III:8(b) of GATT 1994 Does Not Shield Discriminatory Internal Taxes on Imported Products from the National
    Treatment Disciplines of Article III of GATT 1994

    CHAPTER 51
    Is an Undervalued Exchange Rate System a De Facto Export Subsidy?

    CHAPTER 52
    Open Legal Questions Relating to Fisheries Subsidies under Present Norms

    CHAPTER 53
    Carbon Dioxide Emissions

    CHAPTER 54
    The Adequate Legal Approach to “Transnational Subsidies” (Also Called “Extended Subsidies”)

    CHAPTER 55
    Fisheries Subsidies in the New Draft SCM: At Last a Recognition of the Concept of Environmentally Harmful Subsidies?

    CHAPTER 56
    The Paradox of the Absence of Complaints in the WTO Against Measures Taken in Export Processing Zones, Special Industrial Zones, or Free Trade Zones

    CHAPTER 57
    Would the US “Destination-Based Cash-Flow Tax” Be WTO Consistent?

    CHAPTER 58
    Is a Carbon Tax Eligible to BTA?

    Annex I

    CHAPTER 59
    In Connection with the Panel Request

    CHAPTER 60
    In Relation with Collection of Information

    CHAPTER 61
    Attempting Unsuccessfully to Produce Evidence Based on the Practice of Other Members

    CHAPTER 62
    Arguing Successfully That the Fact, That a Measure Induces the Exercise of Rights That Are WTO Consistent, Is Not a Valid Consideration in Deciding Whether Such Measure Is a Specific Action “Against” a Subsidy under Article 32.1 of the SCM

    CHAPTER 63
    Arguing Successfully That the SCM Leaves to Individual Members How to Determine in Their Internal Regime What Constitutes the Date of Initiation of a CVD Investigation

    CHAPTER 64
    Arguing Unsuccessfully There Is a Requirement in Article 13.1 of the SCM to Allow Sufficient Time for Consultations to Be Held Before Initiation of
    the Investigation

    CHAPTER 65
    Invoking Successfully That a System of Limited Disclosure Provides a Derogation from, or Replaces, the Obligations of an Investigating Authority
    under (This) Article to Require Justification for Treatment of Information as Confidential and, If Such Treatment Is Justified, to Require Non-confidential Summaries of the Confidential Information, or, Alternatively, to Require Justification for the Non-summarization of Certain Information (Article 12.4.1 of the SCM)

    CHAPTER 66
    Invoking the Failure by the Investigative Authorities to Inform the Interested Members and Interested Parties of the “Essential Facts under Consideration Which Form the Basis for the Decision Whether to Apply Definitive Measures”

    CHAPTER 67
    Arguing Unsuccessfully That an Enterprise or Group of Enterprises (Fortuny in This Case) May Not Be Considered to Constitute a Domestic
    Industry If, at the Time the Application Is Filed or During the Subsidy POI, It or They Were Not Actually Producing Output

    CHAPTER 68
    Contesting Unsuccessfully the CVD Application Is “by or on Behalf of the Domestic Industry,” Namely That Economía’s Examination of the Degree of Support for the Application Was Inadequate

    CHAPTER 69
    Invoking Successfully a Bad Selection of the Injury Period of Analysis in the CVD Context

    CHAPTER 70
    Arguing Successfully That the Panel Failed to Apply the Proper Standard of Review

    CHAPTER 71
    Claiming Unsuccessfully That a Panel Is Justified to Exclude During Its Proceedings Evidence That, Although Contained in the Record of the CVD
    Investigation, Had Not Been Cited in the CVD’s Decision

    CHAPTER 72
    Issues Relating to the Use of Adverse Facts Available

    CHAPTER 73
    Claiming Unsuccessfully That the Investigative Authorities Should Have Made a Factual Inference from Evidence on the Record That Would Not
    Reasonably Have Suggested Such an Inference

    CHAPTER 74
    Arguing Successfully That the Panel Did Not Use the Expression “Probative and Compelling” in the Sense of a New Evidentiary Standard for Examining Evidence on the Record of a CVD Investigative Authority

    CHAPTER 75
    Failing to Counter US’ Allegation That the Panel Appeared Not to Have Considered Seriously Any Evidence That Did Not Amount to a “Smoking
    Gun” (for Showing Entrustment or Direction)

    CHAPTER 76
    Arguing Successfully That in the Case of Non-recurring Subsidies, If the POI Used for Determining the Existence of a Subsidy Indicates That the
    Subsidy Benefit Will No Longer Exist at a Future Time When a CVD Is Imposed, Then This CVD Is Inconsistent with the SCM

    CHAPTER 77
    Requesting Successfully That the Panel Make Findings Regarding Expired Measures Which Ceased to Have Legal Effect

    CHAPTER 78
    Arguing Successfully That the Investigative Authorities Failed to Provide the “Results” of a Verification Visit in Violation of Article 12.6 of the SCM

    ANNEX II
    WTO Dispute Settlement Reports and Arbitration Awards as at 1 March 2019

    Index

    Contact

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