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Contents
List of tables and figures
Contributors
Introduction: Trade retaliation in WTO dispute settlement: a multidisciplinary analysis
1 ‘Trade retaliation is shooting yourself in the foot’ (reciprocity versus welfare; definition of nullification; choice of counterfactual)
2 'Trade retaliation simply does not work when developing countries win a case' (informal remedies; the WTO enforcement club; smart sanctions; cross-retaliation)
3 ‘Accurately calculating the authorized level of retaliation is a myth and close to impossible’
Part I Background and goal(s) of WTO retaliation
1 The nature of WTO arbitrations on retaliation
1 Novelties in the WTO dispute settlement system
2 Third-party adjudication in the DSU implementation phase
3 WTO arbitrations during the implementation phase: legal versus non-legal disputes; lawyers versus non-lawyers
4 Specific features of WTO arbitration on the level of retaliation
2 The calculation and design of trade retaliation in context: what is the goal of suspending WTO obligations?
1 Introduction
2 What could be the goal(s) of WTO suspension?
3 Why does the goal of WTO suspension matter?
4 How can we figure out the intended goal(s) of WTO suspension?
5 The historical evolution of the goal(s) of trade suspension from GATT to WTO
6 Statements in WTO arbitration reports as to the goal(s) of WTO suspension
Phase 1: induce compliance (albeit with equivalent suspension)
Phase 2: inducing compliance requires more than equivalent suspension (‘appropriate countermeasures’ in response to prohibited subsidies)
Phase 3: identity crisis and doubt as to the goal of WTO suspension in regular DSU cases
Conclusion on WTO arbitration case law
7 Proposition A: suspension in the GATT/WTO has variable goals
8 Proposition B: equivalent suspension can (and normally does) induce compliance largely because it can be tailor-made and is combined with reputation and community costs
9 Proposition C: optimal protection of WTO entitlements is variable protection
10 Conclusion
Comment on chapter 2
Appendix Policy underpinnings of international juridical institutions
Comment on chapter 2
3 Extrapolating purpose from practice: rebalancing or inducing compliance
Our hypotheses
Complainant practice
Conclusion: extrapolating purpose from practice
PART II A legal assessment after ten arbitration disputes
4 The law of permissible WTO retaliation
Introduction
1 Basic features of the WTO enforcement mechanism
(a) The sole remedy for continuing non-compliance is retaliation
(b) Collective retaliation is not envisaged
(c) Retaliation is subject to multilateral disciplines on form and magnitude
(d) Retaliation is temporary
(e) Retaliation does not respond to non-compliance occurring before the expiry of the RPT
2. The process
(a) The initial request for authorisation to retaliate
(b) The Article 22.6 arbitration process
(i) Mandate of the arbitrator
(ii) Burden of proof
(iii) Precedential effect of prior awards
(c) The post-award request for authorisation to retaliate
(d) Ensuring that retaliatory measures remain within the bounds of DSB authorisation
(e) Termination of retaliatory measures
3. Magnitude I: the general equivalence standard
(a) The equality-of-harm approach
(i) Calculation of nullification and impairment arising from the underlying violation
(ii) Calculation of nullification and impairment arising from retaliatory measures
(b) Other approaches
4 Magnitude II: the appropriateness standard in prohibited subsidies cases
(a) The amount-of-subsidy approach
(i) Description of the approach
(ii) Justification of the approach
(b) Other approaches
5. Magnitude III: the commensurate standard in serious prejudice cases
6. Form: the disciplines on cross-retaliation
(a) Overview: no hop, one hop, two hops
(b) Scope of review
(c) Practicability and effectiveness
(d) 'Circumstances are serious enough'
(e) Matters to be taken into account
7 The purpose of retaliation
Conclusion
Comment on chapter 4
1 Introduction
2 Article 22.6 of the DSU: still in the early stages of development
3 Choice of metric for assessing nullification or impairment: the punishment should fit the crime
4 The choice of counterfactual: the arbitrators temporary solution must be WTO-consistent
5 Institutional considerations: improving the information available to arbitrators
5 From Bananas to Byrd: damage calculation coming of age?
The issue
1 The arbitrators’ choice to make their own calculation of the amount of countermeasures
2 The bold yet generally prudently applied concept of ‘inducing compliance’
3 The use of economic models and data, and its limits
4 The reliance on trade loss as a benchmark for nullification or impairment
5 The form of countermeasures
Conclusion
PART III An economic assessment after ten arbitration disputes
6 The economics of permissible WTO retaliation
1 Introduction
2 The Bagwell–Staiger theory of trade agreements and the “reciprocity approach”
3 WTO disputes and retaliation over import-restricting measures
3.1 Import tariffs
3.1.1 Actual DSu arbitrations over import tariffs
3.2 Import quotas
3.2.1 Actual DSU arbitrations over import quotas: EC–Bananas, EC–Beef Hormones, and US–Internet Gambling
3.3 Non-tariff measures on imports that violate national treatment
3.3.1 Actual DSU arbitrations over NTMs on imports that violate national treatment: US–Antidumping Act of 1916
3.4 Domestic subsidies to import-competing firms
3.4.1 Actual DSU arbitrations over domestic subsidies to importcompeting firms: US–Continuing Dumping and Subsidy Offset Act (Byrd Amendment)
4 WTO disputes and retaliation over export-promoting measures
4.1 Export subsidies in a three-country model
4.1.1 Actual DSU arbitrations over export subsidies and third country effects: Canada–Aircraft Subsidies, Brazil–Aircraft Subsidies, and US–Foreign Sales Corporations (FSC)
4.2 Export subsidies in a two-country model
4.2.1 Actual and potential DSU arbitrations over export subsidies in a twocountry model: US–Foreign Sales Corporations (FSC)
4.2.1 Actual and potential DSU arbitrations over export subsidies in a twocountry model: US–Foreign Sales Corporations (FSC)