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