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Vol 23 No 5 May/June 2018

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Drafting Commercial Agreements

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National Treatment and WTO Dispute Settlement: Adjudicating the Boundaries of Regulatory Autonomy

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Gaetan VerhooselLegal Affairs Department, World Trade Organization

ISBN13: 9781841132990
ISBN: 1841132993
Published: April 2002
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £80.00

Despatched in 5 to 7 days.

The percieved impact of WTO law on the domestic regulatory autonomy of WTO members is increasingly becoming the subject of controversy and debate. This text brings together in an integrated analytical framework how the main WTO adjudicators, i.e. the panels and the Appellate Body, have construed those rules. A critical analysis identifies the flaws or weaknesses of these quasi-judical solutions and their potential consequences for members' regulatory autonomy. In an attempt to identify a more proper balance between the WTO law and regulatory autonomy, it develops an innovative interpretation of the National Treatment obligations in GATT and GATS, drawing upon compelling arguements from legal, logic and economic theory.

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International Trade
Part 1 Defining the interface between WTO and domestic legal orders through the interpretation of national treatment: WTO and domestic regulation - national treatment as a gatekeeper; is necessity ""adjudicatable""?; overview.
Part 2 The building blocks - GATT rules on domestic regulation and the 1994 transplant to services: the GATT system for policing domestic regulation - basics; the goods-services transplant.
Part 3 How they were construed - the case law on national treatment, legitimate policy exceptions and non-violation under GATT and GATS: the definition of the scope of national treatment under GATT and GATS by panels and appellate body; existing limitations on the scope of ""de facto"" discrimination -legitimate objectives and least restrictive means under GATT and GATS; national treatment and non-violation.
Part 4 From Japanese shoshu to Chilean pisco - two ways to think about WTO assessment of origin-neutral regulation: stock-taking - the ""Japan-alcoholic beverages"" track; our proposal - the ""Chile-alcoholic beverages"" track.
Part 5 Why equate non-discrimination with necessity?: the intuitive argument -safeguarding regulatory autonomy by requiring regulatory efficiency; remedying the flaws and failures of existing case law - adding some rule to the standard; an integrated necessity test is warranted by a Vienna Convention-conforming interpretation; good faith performance of national treatment obligations as a proxy for optimal care in international trade; making necessity ""adjudicatable"".