The Law of International Trade in Agricultural Products

by
Format: Hardcover
Pub. Date: 2002-04-01
Publisher(s): Kluwer Law Intl
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Summary

As far back as Ricardo's principle of comparative advantage--from which all trade liberalisation theory ultimately derives--it has been customary to treat agriculture as the general exception to trade rules. To this day, nations protect their agricultural trade in a variety of ways: through the limited quantitative restrictions and export quotas permitted under prevailing trade rules, through country-specific derogation in the form of waivers, or even through blatant violations of the General Agreement on Tariffs and Trade (GATT). In fact, despite the general dramatic decline in tariffs in recent decades, The level of effective protection against the flow of agricultural trade has been steadily rising, almost entirely at the behest of developed countries and To The detriment of developing countries. This book analyses the current realities and future prospects for global trade in agricultural products. it seeks to explain the real or apparent rationale behind the virtual exemption of agricultural trade from the operation of the law governing international trade in general, focusing on the GATT/WTO system but examining a variety of nation-source policy reasons that generate this crucial counter-current To The general sweep of trade liberalisation. The issues and topics that arise in the course of the discussion include: the 'tariffication' of non-tariff barriers under the Agriculture Agreement; export subsidies under the Agreement on Subsidies and Countervailing Measures; remedies available against prohibited subsidies; and relevant WTO cases, especially FSC and Canada Dairy, As well as earlier GATT jurisprudence.

Table of Contents

Acknowledgement xv
Foreword xvii
General Introduction
The Economic Rationale for Free Trade
1(2)
Laying the Legal and Institutional Foundations for Freer Trade
3(2)
Agriculture in the Multilateral Trading System
5(2)
The Paradoxes of Agricultural Trade
7(1)
Attempts at Liberalizing Agricultural Trade
8(2)
Purpose and Structure of the Book
10(5)
PART I: THE LAW OF AGRICULTURAL MARKET ACCESS
Market Access under the General Agreement
Introduction
15(1)
Forms of Import Barriers: Tariffs and Non-Tariff Measures
16(1)
The Approach of the General Agreement towards Tariffs and Non-Tariff Barriers
17(7)
Tariffs: The Lesser of Two Evils?
17(2)
Schedules of Concessions
19(3)
Non-Discrimination: The MFN and National Treatment Principles
22(2)
Non-tariff Barriers under the General Agreement in General
24(2)
Quantitative Restrictions under GATT Article XI
26(34)
General
27(1)
Scope of Article XI
28(1)
``Quotas''
29(1)
``Import Licences''
30(2)
``Other Measures''
32(3)
Exceptions to Article XI:1
35(1)
Article XI:2
35(1)
The Agriculture-Specific Exceptions of Article XI:2(c)
36(1)
Agricultural v. Non-Agricultural Products
37(1)
Import Restrictions v. Import Prohibitions
37(1)
``In Any Form''
38(5)
Necessity
43(2)
Governmental Measures
45(2)
Article XI:2(c)(i): Domestic Supply Restrictions
47(3)
Article XI:2(c)(ii): Surplus Removal
50(2)
Last Paragraph of Article XI:2(c)
52(2)
The Previous Representative Period
54(2)
Special Factors
56(2)
Summary of Article XI:2(c)(i)
58(2)
Conclusion
60(2)
Market Access under the Uruguay Round Agreement on Agriculture
Introduction
62(1)
A Review of Basic Issues of Market Access Negotiated in the Uruguay Round
63(3)
Substance of the Agriculture Agreement on Market Access: The Principle of Tariffication
66(30)
General
66(1)
Scope of Measures Subject to Tariffication
67(4)
Methods Used for Tariffication
71(1)
The Base Period for Market Access Commitments
72(1)
Agricultural Tariff Reduction Commitments
73(2)
The Problem of ``Dirty Tariffication''
75(1)
Current Access and Minimum Access Commitments
76(2)
Tariff Rate Quotas
78(8)
Special Safeguard Provisions
86(6)
Special Treatment
92(2)
Surveillance of Implementation of the Market Access Discipline
94(2)
Conclusion
96(3)
PART II: THE LAW OF AGRICULTURAL EXPORT SUBSIDIES
The Law of Export Subsidies in General
Introduction
99(1)
Evolution of the Law of Subsidies in the Multilateral Trading System
100(4)
GATT and the Charter of the ITO
100(3)
GATT and the ``Uniform'' Regime of Subsidies: A Summary
103(1)
The 1955 Amendments: A Two-way Development?
104(28)
Principle: Export Subsidies on Non-Primary Products
107(3)
Exception: Export Subsidies on Primary Products
110(1)
Primary Products v. Agricultural Products
111(3)
Export Subsidies on Agricultural Products
114(1)
The ``Equitable Share'' Standard
114(5)
The ``Representative Period''
119(2)
``Special Factors''
121(4)
Issues of Causation
125(2)
Stabilization Schemes: An Exception to the Rule?
127(3)
Conclusion
130(2)
The 1979 Subsidies Code
132(16)
Introduction
132(1)
Definitional and Policy Matters
133(1)
Export Subsidies V. Non-Export Subsidies
134(1)
Export Subsidies on ``Certain Primary Products'' v. Export Subsidies on Other Products
135(2)
Subsidization of the Primary Product Component of Processed Agricultural Products and the EC-Pasta Case
137(3)
The ``More than Equitable Share'' Issue and the Standard of Displacement as Reflected in the EC Wheat Flour Case
140(7)
The Previous Representative Period
147(1)
The Concept of Price Undercutting in Particular Markets
Concluding Remarks
148(2)
Subsidies under the WTO: with Particular Emphasis on Export Subsidies
Introduction
The Agreement on Subsidies and Countervailing Measures
150(20)
Definition of Subsidies
155(1)
Article 1.1(a): ``Financial Contribution'' or ``Any form of Income or Price Support''
156(1)
Article 1.1(a)(2): ``Any Form of Income or Price Support in the Sense of Article XVI of the GATT 1994''
157(4)
Article 1.1(a)(1): ``Financial Contribution''
161(5)
Article 1.1(b): ``Benefit'' to the Recipient
166(4)
Overview of the Subsidies Discipline
170(4)
Categories of Subsidies
171(1)
Non-Actionable Subsidies
171(2)
Actionable Subsidies
173(1)
Prohibited Subsidies
174(1)
The Discipline of Export Subsidies
174(6)
Definition
174(3)
De Jure v. De facto Export Subsidies
177(3)
Multilateral Remedies Available against Prohibited Subsidies under the ``Special or Additional Rules and Procedures on Dispute Settlement''
180(17)
Consultation
184(4)
Establishment and Composition of Panels
188(2)
Submission of Panel Report
190(1)
Adoption of Panel Report
191(1)
Appellate Review
191(1)
Adoption of Appellate Report
192(1)
Differences in ``Objectives'' and their Ramifications
192(5)
Countervailing Measures
197(7)
Conclusion
204(1)
Agricultural Export Subsidies under the Agreement on Agriculture: An Overview
Introduction
205(2)
A Review of Basic Issues of Export Subsidies Negotiated in the Uruguay Round
207(6)
Definition of Agricultural Export Subsidies
213(17)
General
213(1)
Scope of Export Subsidies under the Agreement on Agriculture
214(5)
Specified Agricultural Export Subsidies: Are They of a Wider Scope than General Export Subsidies?
219(2)
Article 9.1(a): Direct Subsidies
221(1)
Article 9.1(b): Sale for Export at Less than Domestic Market Price
221(1)
Article 9.1(c): Payments on Agricultural Exports
221(1)
Articles 9.1(d) and (e): Subsidization of Marketing and Transportation Costs for Exports
222(1)
Article 9.1(f): ``Upstream Subsidies''
223(1)
Article 10.2: Export Credits, Export Credit Guarantees and Insurance Programmes
223(1)
Conclusion
224(1)
Listed Export Subsidies as Supplementing the Definition
224(6)
The Regulatory Significance of Categories of Export Subsidies and Products under the Agriculture Agreement
230(10)
General
230(1)
Listed v. Non-Listed Agricultural Export Subsidies
231(4)
Scheduled v. Non-Scheduled Agricultural Products
235(2)
The Use of Non-Listed Export Subsidies on Non-Scheduled Agricultural Products
237(3)
Summary
240(1)
Commitments on Agricultural Export Subsidies
General
241(3)
General Methodology Adopted for Disciplining Agricultural Export Subsidies
242(2)
Export Subsidy Reduction Commitments
244(3)
The Base Period for Export Subsidy Reduction Commitments
247(1)
The Dual Commitments: Reductions in the Values and Volumes of Export Subsidies
247(20)
Minimum Reduction Requirements
248(1)
Minimum Reduction Requirements for the Entire Implementation Period
248(1)
Minimum Reduction Requirements at the Annual Level
249(1)
The ``Front-Loading'' Option
250(3)
Non-Listed Export Subsidies and Circumvention Concerns
253(1)
Non-Scheduled Agricultural Products and Anti-Circumvention - The FSC Case
254(6)
Scheduled Agricultural Products and Anti-Circumvention - The Canada Dairy Case
260(7)
Conclusion
267(1)
Article 9.2(b): ``Downstream Flexibility'' Exceptions
267(12)
Condition for Flexibility in Outlay Commitments
268(3)
Flexibility in Quantitative Commitments
271(5)
Common Condition
276(1)
Summary
277(2)
Enforcement of the Export Subsidies Discipline
Implementation and Surveillance of the Discipline of Export Subsidies
279(8)
Notification of Export Subsidies
279(3)
Waivers from Export Subsidy Commitments
282(4)
Conclusion
286(1)
Remedies against Violation of the Rules on Agricultural Export Subsidies
287(18)
General
287(1)
What Amounts to a Violation in Agricultural Export Subsidy Cases?
287(1)
Is Availability of Export Subsidies Per Se a Violation?
288(2)
Countervailing Duties under the Agreement on Agriculture
290(2)
Authorized Countermeasures against Agricultural Export Subsidies
292(4)
Burden of Proof as an Added Safety Valve
296(9)
PART III: THE LAW OF AGRICULTURAL DOMESTIC SUPPORT
The Law of Domestic Support in General
Introduction
305(10)
Incidence of Domestic Subsidies
307(1)
Policy Underpinnings
308(1)
Forms of Domestic Support
309(1)
Market Price Support
310(1)
Deficiency Payments
311(1)
The Need for, and the Challenges of, Regulation
312(3)
Domestic Support Measures and the Multilateral Trading System
315(6)
The Need for an Integrated Approach
315(3)
Domestic Subsidies: Attempts at Multilateral Regulation
318(3)
Domestic Support Measures under the 1947 Version of the General Agreement
321(28)
Definition of Subsidies
321(2)
Notification of Subsidies
323(1)
The Obligation to Discuss the ``Possibility of Limiting the Subsidization''
324(4)
Remedies Available to Affected Parties
328(1)
Domestic Subsidies and the Doctrine of prima facie Nullification or Impairment under Article XXIII
328(4)
The Role of the Australian Ammonium Sulphate Case
332(3)
Countervailing Duties as Remedial Measures
335(4)
Domestic Subsidies and the Principle of National Treatment
339(2)
The 1958 Italian Agricultural Machinery Case
341(1)
The 198 EC Oilseeds Case
342(3)
The 199 US Malt Beverages Case
345(4)
Conclusion
349(1)
Domestic Subsidies and the 1955 Review Session
349(18)
GATT Case Law on Domestic Subsidies and the Doctrine of ``Reasonable Expectations''
351(1)
The 1982 EC Canned Fruits Case
352(7)
The 1988 EC Oilseeds Case
359(7)
Conclusion
366(1)
Domestic Subsidies under the Subsidies Code
367(3)
Policy Aspects
367(2)
The Obligation to ``Seek to Avoid'' Causing Adverse Effects by Means of Domestic Subsidies
369(1)
Conclusion
370(1)
Domestic Support under the Uruguay Round Agreement on Agriculture
Background: Domestic Support under the SCM Agreement in General
371(13)
Import-Substitution Subsidies: A ``Red Box'''?
371(7)
Actionable Subsidies
378(2)
Multilateral Remedies Available against Actionable Subsidies
380(2)
Non-Actionable Subsidies
382(2)
The Agriculture Agreement on Domestic Support
384(38)
Conceptual Background
384(3)
A Review of Basic Issues of Domestic Support Negotiated in the Uruguay Round
387(6)
Substance of the Rules
393(1)
General
393(3)
The AMS: Definition
396(1)
The AMS: Calculation
397(1)
Market Price Support
397(2)
Non-Exempt Direct Payments
399(2)
Other Non-Exempt Policies
401(1)
The AMS: its Variants and the Depth of Reduction Commitments
401(6)
The AMS and the Base Period for Reduction of Support
407(3)
The Currant Total AMS: What Measures are Exempted?
410(1)
Exemption under Article 6
411(1)
De Minimis Levels of Support
411(1)
Direct Payments under Production-Limiting Programmes: The ``Blue Box'' Measures
411(2)
Domestic Support Provided by Developing Countries: ``Development Programmes''
413(1)
Exemptions under Annex 2: The ``Green Box'' Measures
413(1)
General Services
414(1)
Public-Stockholding for Food Security Purposes
415(1)
Domestic Food Aid
415(1)
Direct Payments to Producers
416(1)
Decoupled Income Support
416(1)
Government Financial Participation in Income Insurance and Income Safety-Net Programmes
417(1)
Disaster Relief
418(1)
Structural Adjustment Assistance
418(1)
Payments under Environmental Programmes
419(1)
Payments under Regional Assistance Programmes
419(1)
Summary of the ``Green'' Measures
420(2)
Implementation and Surveillance of the Discipline of Domestic Support Measures
422(3)
Conclusion
425(2)
Trends and Perspectives in the Law of Agricultural Trade
General
427(2)
The Agriculture Negotiations: Does the EU Position Provide any Perspectives into the Future?
429(12)
Trade Issues
431(1)
Market Access
431(2)
Export Competition
433(2)
Domestic Support
435(1)
Non-Trade Concerns (NTCs)
436(1)
Environment
437(1)
Poverty Alleviation and the Sustainable Vitality of Rural Areas
437(1)
Food Safety
438(1)
Animal Welfare
439(1)
Special and Differential Treatment
440(1)
The Peace Clause
440(1)
Conclusion
441(2)
Bibliography 443(14)
Index 457

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