International Trade Law

1. International Trade Law

2. Defining Trade terms • Dictionary of International Trade • REF K3943 .B488 2008 • INCO terms (published by the ICC) • This publication is KEY if you are working on international sales of goods; we do not have the new 2010 edition, so get a sense of the types of terms used here: http://en.wikipedia.org/wiki/Incoterm • SICE (OAS) Glossaries of Trade Terms • http://www.sice.oas.org/Glossaries_e.asp

3. Int’l Trade – Secondary Sources • BNA’s International Trade Reporter • BNA’s WTO Reporter • Available through links found here: http://lawlib1.lawnet.fordham.edu/eresources/erlinks/trade.html • WorldTradeLaw.net • TradeLawGuide

4. Legal framework of int’l trade • Most countries members of WTO • Many countries also have bilateral or regional trade agreements • Trade agreements generally have dispute resolution mechanisms • Trade obligations may affect/supplant national law

5. WTO – An IGO? • International legal status created by: • Marrakesh Agreement • Legislative body: • Ministerial Conference which meets at least once every two years • Dispute Settlement Body • Executive body: • WTO Secretariat, headed by a Director-General

6. WTO history • Began in 1995, built on GATT • GATT began in 1947 • GATT intended as tariff-cutting agreement. • “Rounds” are series of negotiations intended to cut tariffs.

7. 3 main principles of GATT/WTO • convert all trade barriers to tariffs • transparent • easier to administer • most-favored-nation (MFN) • any favorable trade treatment must be given to all members • national treatment • imports treated equally with domestic

8. WTO: 6 components • trade in goods –1994 GATT agreement –all bound • product standards –all bound • GATS –trade in services—not all bound • TRIPs –all bound • plurilateral agreements (e.g., gov’t procurement) –some bound • dispute resolution –all bound

9. Researching WTO law • Learned Handy on WTO and GATT law: http://lawlib1.lawnet.fordham.edu/research/gatt_wto.pdf • NYU Guide to WTO/GATT: http://www.law.nyu.edu/library/ wtoguide.html • treatises for background, concepts, details [use the research guides to locate key titles in our catalog]

10. WTO dispute resolution process • “request for consultations” = complaint • panel • appellate body (appeals routine) • loser must bring itself into compliance • if not, winner can retaliate

11. WTO dispute resolution process

12. Locating WTO dispute panel decisions • WTO website best place to find decisions • Also available here: • “Official” source for decisions: Dispute Settlement Reports [K4600.A53 W67, lag time currently 3 years] • Lexis [International law >Find Statutes, Regulations & Administrative materials & regulations >Regulations & Agency Decisions >Agency Decisions >GATT panel and World Trade Organization decisions, 1948-] • Westlaw [WTO-DEC]

13. WTO site • The official WTO website contains: • documents from 1995 • use Stanford’s GATT site for GATT documents (pre-1995): http://gatt.stanford.edu/bin/search/simple • treaties • WTO Analytical Index — Guide to WTO Law and Practice (travaux and interpretation) • http://www.wto.org/english/res_e/booksp_e/analytic_index_e/analytic_index_e.htm • reports, news, statistics

14. Locating WTO decisions • Can be found in full text on the WTO site in the “Dispute Resolution” section, but notoriously cumbersome and difficult to actually download full text documents • Follow the directions in the following slides on how to get to the page

15. Begin at the WTO website (http://www.wto.org) and then mouse over “Trade Topics”, mouse over “Dispute Settlement” and then select the “Dispute Settlement Gateway”

16. Click on “Dispute Settlement” on the next page (with the globe) and then scroll down the page until you see the toolbar on the right-hand side that is titled “The Disputes”. Select the most appropriate way of locating the case you are looking for based on the info you have.

17. Locating WTO decisions • If you want to find background information on the cases by Agreement or topic, try using the WTO Analytical Index to locate a relevant case • using a subject search for the topic, • or search the annotated agreements to find interpretative cases on almost every article of the main WTO agreements

18. To use the WTO Analytical index, use the URL provided in the previous slide to access the Index. Decide which way you wish to use the Index—by the Agreement/Article, or by subject Could you possibly be looking for information regarding the interpretation of terms used in one of these Agreements? Or are you looking for cases/documents related to an item like bananas?

19. Other sources for WTO research • WorldTradeLaw.net • Been around longer so interface is a bit dated; can be difficult to navigate • Key resource: Dispute Settlement Commentaries • TradeLawGuide • Newer, more practitioner-oriented • Key resource: citator for WTO decisions

20. WorldTradeLaw.net • http://www.worldtradelaw.net • Secondary source that provides commentary and links to primary source WTO materials—often much easier to retrieve documents on this site than the WTO site • Some free information, some you have to pay for • Most useful product they produce are the Dispute Settlement Commentaries (DSC) • DSCs summarize the findings of a WTO panel/appeal decision and then provide commentary on the implications of the decision

21. Subscription stuff Locate DSCs here Free stuff

22. TradeLawGuide • http://www.tradelawguide.com • More practitioner-oriented, but useful source for tracing the process of a WTO case • Provides text of the DSB minutes as well as negotiating history of the Uruguay Round • Also provides a citator service that allows you to “shepardize” a decision to see how subsequent cases on a particular issue have been resolved

23. Use “Short Titles” kind of like the Popular Name table for finding statutes Locate annotated agreements “Shepardize” previous decisions

24. Exercise #2 • Locate a WTO case that discusses the phrase “differences which affect price comparability” in Article 2.4 of the WTO Agreement • Has this decision been cited subsequently by a WTO dispute resolution body? • Is there a Dispute Settlement Commentary (DSC) available for this case?

25. Trade Agreements • permitted by WTO • multilateral (ex. NAFTA) or bilateral (ex. Korea) • important because of stalled progress on Doha roundcan’t get things done together, do them yourself • US aggressively pursuing—NAFTA, CAFTA-DR, in negotiations on Colombia, Korea, Panama, Asia-Pacific

26. NAFTA • earlier CFTA (US-Canada) • decreases, then removes tariffs • Anti-dumping, countervailing duty disputes (Chapter 19) — arbitration before bi-national panels • investment disputes (Chapter 11)—ICSID arbitration, UNCITRAL

27. Locating NAFTA Binational Panel decisions • NAFTA Secretariat website http://www.nafta-sec-alena.org • No official reporter, but in print consult: North American free trade agreements [looseleaf reporter, volumes including treaties, disputes, and investor-state arbitration KDZ944.A41992 L39] • Westlaw [NAFTA-BIP] • Lexis [International Trade > Cases > Interpreting U.S. Law > NAFTA Panel Review Decisions]

28. Locate NAFTA dispute panel decisions from the main NAFTA page (URL provided in previous link) by looking under “Dispute Settlement – Decisions and Reports” or using the graphical link on the right hand side

29. Tariff schedules • Did they overcharge your client? Check the tariff schedule: • US Harmonized Tariff Schedule • http://hts.usitc.gov/ • WTO schedule of concessions • http://tariffdata.wto.org • Other countries: • Locate a country’s trade department site

30. Exercise #3 • Did NAFTA ever adjudicate a dispute involving the same material at issue in the WTO in Exercise #2? If so, which two countries were involved? • What is the Harmonized Tariff Schedule number for this material generally (generally don’t need to know the .xxx decimal denomination for the particular type of this material)