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Since the publication of its first edition, this textbook has been the prime choice of teachers and students alike, due to its clear and detailed explanation of the basic principles of the multilateral trading system and the law of the World Trade Organization (WTO). The fifth edition continues to explore the institutional and substantive law of the WTO. It has been updated to incorporate all new developments in the WTO's ever-growing body of case law. Moreover, each chapter includes a 'Further Readings' section to encourage and facilitate research and discussion on the topics addressed. As in previous editions, each chapter also features a summary to reinforce learning. Questions, assignments, and exercises on WTO law and policy are contained in an online supplement, updated regularly. This textbook is an essential tool for all WTO law students and will also serve as a practitioner's introductory guide to the WTO.

INTRODUCTION This chapter deals with the WTO rules applicable to sanitary and phytosanitary measures, commonly referred to as ‘SPS measures’. Generally speaking, SPS measures are measures aimed at the protection of human, animal or plant life or health from certain specified risks. As mentioned in Chapter 13, SPS measures often take the form of technical barriers to trade but are subject to a different set of WTO rules. The negotiators of the WTO agreements considered that these measures merited special attention for two reasons: first, because the preservation of domestic regulatory autonomy was, and still is, considered of particular importance where health risks are at issue; and, second, because of the close link between SPS measures and agricultural trade, a sector that is notoriously difficult to liberalise. As a result, SPS measures are dealt with in a separate agreement, the Agreement on the Application of Sanitary and Phytosanitary Measures , commonly referred to as the SPS Agreement . This Agreement provides for rights and obligations, which, although broadly similar, differ in certain key respects from those provided in the GATT 1994 and the TBT Agreement . WTO Members frequently adopt SPS measures to protect humans and animals from food safety risks, or to protect humans, animals and plants from risks arising from pests and diseases. However, countries exporting food and agricultural products, as well as international organisations, have observed that SPS measures are increasingly used as instruments of ‘trade protectionism’. W. Barnes reported in the Financial Times in April 2006: Stringent, often excessively strict, hygiene standards are increasingly being used by rich countries to block food imports from developing economies, according to researchers in Thailand, India and Australia … The recent bird flu scare was manna for Western safety officials, said a trade negotiator at the Thai commerce ministry. ‘The rich food importers are getting better and better at manufacturing safety hazards – real and imagined’, the official said … A World Bank study found that trade in cereals and nuts would increase by $12bn if all 15 importing countries [referring to the fifteen EU Member States at the time of the study] adopted the international Codex standards for aflatoxin contamination, which is produced by a cancer-linked mould, than if they all abided by tougher EU requirements. Some safety measures appear exotic. […]

INTRODUCTION As mentioned in Chapter 8, apart from the ‘general exceptions’ and the ‘security exceptions’, discussed in that chapter, WTO law also provides for ‘economic emergency exceptions’. These exceptions allow Members to adopt two types of measures, otherwise WTO-inconsistent, namely, ‘safeguard measures’ and ‘balance-of-payments measures’. This chapter deals in turn with: (1) safeguard measures under the GATT 1994 and the Agreement on Safeguards ; (2) safeguard measures under other WTO agreements; and (3) balance-of-payments measures under the GATT 1994 and the GATS. SAFEGUARD MEASURES UNDER THE GATT 1994 AND THE AGREEMENT ON SAFEGUARDS The most important and most frequently used of the measures discussed in this chapter are the safeguard measures under the GATT 1994 and the Agreement on Safeguards . These safeguard measures may be adopted where a surge in imports causes, or threatens to cause, serious injury to the domestic industry. The possibility to restrict trade in such situations is a ‘safety valve’ which has always been, and still is, provided for in most trade agreements, including the WTO Agreement . It reflects the political reality that trade liberalisation may be difficult to sustain if and when it creates unexpected and severe economic hardship for certain sectors of a country's economy, especially import-competing industries. Safeguard measures temporarily restrict import competition to allow the domestic industry time to adjust to new economic realities. Their application does not depend upon ‘unfair’ trade actions, as is the case with anti-dumping or countervailing measures. Safeguard measures are applied to ‘fair trade’, that is, trade occurring under normal competitive conditions and in accordance with WTO law. The Appellate Body therefore noted in Argentina – Footwear (EC) (2000) that: the import restrictions that are imposed on products of exporting Members when a safeguard action is taken must be seen … as extraordinary . And, when construing the prerequisites for taking such actions, their extraordinary nature must be taken into account. In US – Line Pipe (2002) , the Appellate Body stated that ‘part of the raison d’etre ‘ of safeguard measures is: unquestionably, that of giving a WTO Member the possibility, as trade is liberalized, of resorting to an effective remedy in an extraordinary emergency situation that, in the judgment of that Member, makes it necessary to protect a domestic industry temporarily.

INTRODUCTION In addition to the ‘general and security exceptions’ and the ‘economic emergency exceptions’ discussed in Chapters 8 and 9 respectively, WTO law also provides for ‘regional trade exceptions’. These exceptions allow Members to adopt measures that would otherwise be WTO-inconsistent, when they are in the pursuit of economic integration with other countries. While, in the past, the term ‘regional trade exceptions’ as well as the term ‘regional trade agreements’ (RTAs) described well the reality they referred to, in recent years these terms have given rise to some confusion. In the past, the term ‘regional trade agreements’ was used to refer to the economic integration efforts between adjacent countries or countries in the same region. Good examples of such regional economic integration efforts are the North American Free Trade Agreement , the Southern Common Market (MERCOSUR) Agreement and the ASEAN Free Trade Area (AFTA) Agreement . To the extent that these and other regional economic integration efforts involved GATT 1994 or GATS-inconsistent measures, these measures could – under specific conditions – be justified under the regional trade exceptions of the GATT 1994 and the GATS. In recent years, however, the countries involved in economic integration efforts are often countries or groups of countries from different regions . Consider, for example, the European Union–South Korea Free Trade Agreement , the United States–Colombia Trade Promotion Agreement and the India–MERCOSUR Preferential Trade Agreement . Instead of referring to these agreements as ‘regional trade agreements’, they are often referred to as ‘preferential trade agreements’ (PTAs). The WTO World Trade Report 2011 stated: One half of the PTAs currently in force are not strictly ‘regional’. The advent of cross-regional PTAs has been particularly pronounced in the last decade. The trend towards a broader geographical scope of PTAs is even more pronounced for those PTAs that are currently under negotiation or have recently been signed (but are not yet in force). Practically all of these are of the cross-regional type. However, as WTO Members and the WTO Secretariat continue to use the term ‘regional trade agreements’, this book also continues to use this term, and discusses in this chapter the ‘regional trade exceptions’, even though the word ‘regional’ is almost a misnomer because such economic integration agreements often no longer have the traditional geographical connotation. The ‘regional trade exceptions’ are set out in Article XXIV and the Enabling Clause of the GATT 1994, and Article V of the GATS.

INTRODUCTION As discussed in Chapters 6 and 7, the importance of tariffs and quantitative restrictions as barriers to trade in goods has gradually decreased over time. While continued vigilance and further liberalisation efforts regarding these traditional barriers to trade are certainly called for, regulatory measures affecting trade in goods raise now a more pressing challenge for the multilateral trading system. As discussed in Chapter 7, such regulatory measures can take the form of technical barriers to trade. The current chapter deals with the WTO rules applicable to technical barriers to trade (TBT). The next chapter, Chapter 14, will deal with the different WTO rules applicable to sanitary and phytosanitary (SPS) measures, which pose challenges to international trade similar to technical barriers to trade. The WTO rules applicable to technical barriers to trade and those applicable to SPS measures have in common that they go beyond the general rules applicable to non-tariff barriers, as set out in the GATT 1994. As discussed in Chapters 4, 5 and 7, these general rules focus on eliminating the negative trade effects of non-tariff measures, primarily by prohibiting them (as is the case for quantitative restrictions) or by ensuring their non-discriminatory application (as is the case for internal tax and regulatory measures). However, the rules applicable to technical barriers to trade, as set out in the TBT Agreement , and the rules applicable to SPS measures, as set out in the SPS Agreement , go further in addressing non-tariff barriers to trade by also promoting regulatory harmonisation. The relevant rules of the TBT Agreement and the SPS Agreement encourage Members to harmonise their national TBT and SPS measures around standards set by the relevant international standard-setting bodies. Technical barriers to trade, the subject matter of this chapter, are omnipresent in modern society. Television sets, toys, cosmetics, medical equipment, fertilisers, meat and cheese are all subject to requirements relating to their (intrinsic and extrinsic) characteristics and the manner in which they are produced. The objective of these requirements may be – and often is – the protection of life or health, the protection of the environment, the protection of consumers, the prevention of deceptive practices, or the protection or promotion of many other legitimate societal values or interests. These requirements may be mandatory, set and enforced by governments.

The WTO contract is essentially a government contract with important repercussions on private parties` interests. WTO Members enjoy wide discretion when it comes to regulating the way in which private interests will be represented; the WTO contract itself imposing only an obligation to perform the WTO contract in good faith. In principle, three solutions seem legally possible: WTO Members recognize direct effect to the WTO rules and consequently allow private parties to invoke WTO rules before national courts; WTO Members do not recognize any direct effect on the WTO rules and continue to be the sole judges of whether private parties` interests should be represented before the WTO adjudicating bodies; recently, in the WTO Government Procurement Agreement, the so-called `challenge procedures` were agreed whereby WTO Members would allow private parties to check whether government behaviour in the field of government procurement is in conformity with the relevant WTO rules. This paper argues that since the first option is still `wishful thinking` and the third option is limited, for the time being, strictly to government behaviour, private parties` interests will continue to be represented for some time by governments. Hence, the need to study such instruments and their evolution. We propose a comparative study of the two most elaborate instruments in this respect (the EC and the US instruments) and draw the conclusion that over time they have become more responsive to private parties` concerns but that they can by no means be construed as perfect substitute of the other two options.

Foreword to the 1995–2010 edition The WTO Appellate Body Repertory of Reports and Awards is intended to serve first and foremost as a source of information for those interested in the field of international trade law. It presents a systematic compilation of Appellate Body jurisprudence over the past 15 years. The Repertory was initially developed as an internal research tool to assist the Appellate Body Secretariat in carrying out its duty to provide legal advice to Appellate Body Members. The Secretariat subsequently decided to make the Repertory available to the public to serve as a practical tool for officials from WTO Members, particularly for those that may not have the resources to prepare similar compendiums in-house. We hope that the Repertory will also assist academics, students, private practitioners, and others with interest in international trade law and dispute settlement practice who need to consult and access precise information about the evolution of, and most recent developments in, Appellate Body jurisprudence. The publication of the first edition of the Repertory marked the Tenth Anniversary of the establishment of the Appellate Body in 1995, and sought to commemorate the substantive body of jurisprudence developed by the Appellate Body during its first ten years. A second, updated edition was published in April 2006, and a third edition followed in 2007. This fourth edition contains additional material from the 16~Appellate Body Reports adopted by the WTO Dispute Settlement Body from 2007 through January 2010. Thus, this fourth edition now encompasses excerpts from more than one hundred Appellate Body Reports. The Repertory also contains excerpts from the 25 Arbitration Awards issued pursuant to Article~21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes determining the “reasonable period of time” for implementation of rulings by the WTO Dispute Settlement Body. All Article 21.3(c) arbitrations have been carried out by current or former Appellate Body Members acting in their individual capacity. This fourth edition contains new excerpts from the four Awards issued from 2007 through 2009.

This paper provides an introduction to the panel process within the framework of the World Trade Organization (“WTO”) dispute settlement mechanism. After this brief introduction (I), it discusses (II) the types of complaints (that is, “violation” complaints, “non-violation” complaints and “situation” complaints); (III) who may participate in panel proceedings (including whether private counsel and non-governmental organizations may participate and whether there is a need for a “legal interest” in initiating proceedings); (IV) the object of a complaint; (V) the consultations stage; (VI) panel establishment and terms of reference; (VII) multiple panel proceedings; (VIII) panel composition; (IX) procedural stages of panel proceedings (including organizational meeting, preliminary issues and procedural objections, written submissions and oral hearings, confidentiality of proceedings); (X) third party rights; (XI) burden of proof (including timing of evidence); (XII) panel’s right to seek information (including expert review groups and duty to respond); (XIII) mandate of panels in respect of legal issues and factual issues; (XIV) interim review stage; (XV) contents of the final panel report (including the obligation to set out the basic rationale behind panel findings, duly exercise judicial economy, not to add to or diminish rights and obligations of Members, and the right to suggest how to implement the panel findings); and (XVI) conclusion of panel proceedings.1

Introduction The need for a reasonable period of time for the implementation of rulings and recommendations adopted by the Dispute Settlement Body (DSB) arises in two situations: first, when the responding party in a dispute settlement proceeding has been found to have violated WTO rules or otherwise nullified or impaired benefits accruing to the complaining party; and second, when the incriminated measure is still in existence at the time when the responding party that has ‘lost’ the case has to inform the DSB of its intentions in respect of implementation. For this purpose, a DSB meeting has to be held within 30 days after the adoption of the panel report and, if applicable, the Appellate Body report. According to the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), prompt compliance is the rule and the conferral of a reasonable period of time for implementation is supposed to be the exception. Article 21.1 of the DSU specifies that prompt compliance with recommendations or rulings of the DSB is essential for the effective functioning of the WTO dispute settlement system. Only if compliance without delay is ‘impracticable’ is a ‘losing’ party entitled to a reasonable period of time. The starting point for the calculation of a reasonable period of time is the date of adoption of recommendations or rulings by the DSB (in other words, the date when the DSB adopts the panel and Appellate Body reports).