Argentina – Financial Services: will the AB’s reasoning finally shed light on the “Likeness” analysis under the GATS?

In the recent case Argentina – Financial Services the Appellate Body (“AB”) established, for the very first time in the history of the WTO disputes settlement, the examination of the “likeness” under the General Agreement on Trade in Services (“GATS”). In particular, the dispositions at issue were Art. II:1 and Article XVII:1 of the GATS, respectively the Most-Favoured-Nation Treatment, and the National Treatment. Needless to say, the concept of “likeness” under the GATS has been explored by WTO panels, but without successfully achieving consistent interpretations. Will the AB’s reasoning in Argentina – Financial Services clarify the meaning of “likeness” under the GATS?Read More »

India files complaint against USA at WTO over visa fee hike

wto_india_usa_visa_fee_hike_case_analysisIndia has formally initiated a WTO dispute proceeding against the United States over the increased visa fees for two categories of non-immigrant temporary working visas into the US, and measures relating to numerical commitments for some visas ,as per the announcement on the WTO website here.

On 3 March 2016, India notified the WTO Secretariat that it has initiated a WTO dispute proceeding against the United States regarding measures imposing increased fees on certain applicants for two categories of non-immigrant temporary working visas into the US, and measures relating to numerical commitments for some visas. According to India, the measures appear to be inconsistent with US commitments under the General Agreement on Trade in Services.Read More »

The Philip Morris Case and the Right to Regulate (Legislate)

By Olga S. Shaposhnikova, PhD Candidate, International Arbitration*

Introduction

TOBACCO-2-articleLargeOn December 17, 2015, the arbitral tribunal of Prof. Gabrielle Kaufmann-Kohler, Prof. Don McRae and Prof. Karl-Heinz Boeckstiegel dismissed the claim filed in 2011 by Philip Morris Asia Limited (“PM Asia”) against the Commonwealth of Australia (“Australia”) under the Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments, 1993 (the “BIT”)[1]. This dispute – the first investor-state dispute brought against Australia – was caused by Australia’s introduction of the Tobacco Plain Packaging Act 2011, legislation developed in line with the World Health Organization’s Framework Convention on Tobacco Control, 2003, adopted by 180 States. However, Philip Morris argued in this case[2] that Read More »

WTO20LATAM: Regionalism vs Multilateralism

By Emilio Arteaga*

Recently, the World Trade Organization (WTO) celebrated its 20th anniversary, and several events were held in different places around the globe commemorating this historic event. One of them being a round of conferences held in Cancun, Mexico, from December 2nd to December 4th called “Latin American and the Future of International Trade Law” also known as WTO20LATAM. The event reunited trade lawyers, academics and government officials from Latin America, US, and Europe, as well as five Appellate Body Members. The discussions were of a very high quality, as experts gave powerful insights that were later complemented with the opinions of an appellate body member.

regionalism-multilateralism-cancun-latin-america-and-future-of-regional-trade

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The Initiative concerning Special Economic Zones in Mexico: Is it WTO compliant?

By Emilio Arteaga*

I. Introduction

In September, Mexican President Enrique Peña Nieto announced an initiative to create Special Economic Zones that is yet to be approved by the Mexican Congress Senate.[1] The proposed initiative will set forth the legal framework with the intention to mirror successful policies adopted around the globe, such as China’s Special Economic Zones. If the Law is adopted, the President claims that he will create three Special Economic Zones that will be located at the South-Pacific coast in order to take advantage of Mexico’s geographic competitive advantage.[2]

The alleged purpose of this law is to close the alarming economic gap between the North and South of Mexico by creating an enabling business environment and integrating the South with global value chains. While the North and Center of Mexico have attracted considerable amounts of Foreign Direct Investment, developed important industrial hubs, and GDP per capita has increased, the South’s economic development has performed poorly and faces high poverty levels. In order to attract private investment in the south of Mexico, the President announced billions of pesos in infrastructure as well as tax and finance incentives as part of this new economic policy.

Given that subsidies are subject to the disciplines established within the legal framework of the World Trade Organization (WTO), one might question whether Mexico’s initiative is WTO compliant. Therefore, this entry explores whether the cited initiative conflicts with WTO Law. By doing so, it will first provide a brief explanation about Special Economic Zones, China’s Special Economic Zones, and the initiative proposed by the Mexican president.Read More »

Decision in USA-India WTO Dispute to come out next month

The Chairman of the Panel in ‘India — Certain Measures Relating to Solar Cells and Solar Modules’ has informed the Dispute Settlement Body (‘DSB’) that the final Panel Report is expected to come out next month.

The United States has challenged certain measures of India relating to domestic content requirements under the Jawaharlal Nehru National Solar Mission (“NSM”) for solar cells and solar modules. Brazil; Canada; China; European Union; Japan; Korea, Republic of; Malaysia; Norway; Russian Federation; Turkey; Ecuador; Saudi Arabia, Kingdom of; Chinese Taipei are third parties to the dispute.

The NSM was launched in 2010 with an ambitious target of deploying 20,000 MW of grid connected solar power by 2022. It aimed at reducing the cost of solar power generation in the country through aggresive Research & Development and domestic production of certain critical components. Therefore, the idea was to encourage domestic production of solar panels and modules.

According to the United States, under NSM, the solar power developers are granted certain benefits such as guaranteed long term tariffs for electricity (in the form of power purchase agreements under NSM or with NTPC Vidyut Vyapar Nigam Limited) if they purchased and used solar cells and solar modules of domestic origin.

US-India WTO Dispute
Picture Courtesy: The Diplomat

The United States’ position is that these domestic content requirements are inconsistent with Article III:4 of the GATT 1994 (National Treatment); Article 2.1 of the TRIMs Agreement( National Treatment and Quantitative Restrictions) and Articles 3.1(b), 3.2, 5(c), 6.3(a) and (c), and 25 of the SCM Agreement (Prohibition on Subsidies, Causing of Adverse Effects through Subsidies, Notification of Subsidies).Read More »