International Trade Law: A Comprehensive E-Textbook, Volume 2 Fundamental Multilateral Obligations (6th edition)

Abstract

Volume Two, Fundamental Multilateral Obligations, provides in-depth coverage of the General Agreement on Tariffs and Trade (GATT) and World Trade Organization (WTO). International Trade Law springs from, and operates at, three levels: multilateral trade treaties, i.e., GATT-WTO rules; regional trade agreements, i.e., rules arising from free trade agreements (FTAs) and customs unions (CUs); and national measures, e.g., rules specific to one country, such as America or India. Volume Two is all about this first level. Subsequent Volumes deal with the other levels. But, across all eight Volumes, GATT-WTO rules are of special, if not pre-eminent, importance – at least if there is anything to the international rule of law.

Part One lays out the architecture of multilateral trade treaties. Special emphasis is on the 1986-1994 Uruguay Round. It produced the largest and most complex of trade treaties in human history, and birthed the WTO. Also discussed here is how countries became contracting parties to GATT, and how they accede as Members to the WTO.

Part Two provides studies the luster and blemishes on the “crown jewel” of the GATTWTO regime, namely, its adjudicatory system. How did this system evolve since 1947 into today’s sophisticated set of procedures for resolving trade disputes among WTO Members? What problems do WTO Panels and the Appellate Body face? Does stare decisis operate, in a de facto sense, in this system? Why did the Appellate Body – loosely akin to a Supreme Court of International Trade – collapse in December 2019, and what replaced it? Can it be said, under Positivist Legal Theory, that International Trade Law is truly “law,” unlike, perhaps, Public International Law?

Part Three sets the foundation for the remaining two Parts, Three and Four. All GATTWTO disputes necessarily begin with a basic question: what is the relationship between or among (1) an imported product, and either (2) an allegedly aggrieved other imported product or (3) domestically-produced product? If (1) an imported product bears no “likeness” either to (2) another imported product or (3) a domestically-produced product, then that imported product cannot be said to cause harm to the other merchandise. Part Three elucidates the legal tests for “likeness,” which derive from considerable GATT-WTO jurisprudence.

Part Four then identifies each of the five most important rules in the entire multilateral trading system – the “Five Pillars.” They are most-favored nation (MFN) treatment, national treatment (for both fiscal and non-fiscal measures), tariff bindings, quantitative restrictions (QRs), and transparency. To know these rules well is to know a lot about International Trade Law. They, or their analogs, are reincarnated countless times not only in WTO treaties that deal with, for example, IP and services, but also and in FTAs. Part Four untangles the text of each of these rules, and the leading GATT-WTO cases that apply them in a wide array of provocative circumstances.

Finally, Part Five addresses the reality that every rule has one or more exceptions. There are “cracks” in each of the Pillar obligations. Some are across-the-board derogations, available in the event of a violation of any provision of GATT. Others are specific to a violation of a particular GATT Article. This Part also asks why there is no broad exception to justify a protectionist measure to advance human rights.

Overall, Volume Two gives readers both the basic concepts, and advanced critiques, of how the international rule of law is manifest with respect to trade, namely, the GATT-WTO regime. Like the other seven Volumes of International Trade Law: A Comprehensive ETextbook, this Volume is available Open Access, and thus freely, quickly downloadable.