WTO Case Law in 2014

This analytical survey of WTO case law for 2014 is carried out within the framework of the PhD program in International Law and Economics of the PhD school of Bocconi University (Milan) and with the collaboration of the two Marie Curie Early Stage Research Fellows within the DISSETTLE network. Professor Giorgio Sacerdoti, a former member of the WTO Appellate Body (2001-2009), has coordinated the individual reviews of WTO case law. A shorter version of this review will be published in the 2014 Italian Yearbook of International Law.2014 was in many ways an exceptional year for WTO dispute settlement. The Appellate Body was operating with six Members for most of the year and saw a record number of appeals brought to it. Delays ensued and resulted in friction between WTO Members regarding the interpretation of Article 17.5 of the DSU that sets out the time limit for the Appellate Body. Some appeals were put on hold. Requests for consultations remained high, and the number of established panels increased. In some cases panels were composed but could not begin work, as the WTO Secretariat could not support them. These developments led to an unprecedented speech of the Director General of the WTO (DG) to the Dispute Settlement Body (DSB). The DG announced some internal restructuring to allocate more resources to dispute settlement and asked WTO Members to consider other solutions, including increasing the number of Appellate Body Members to nine (Section 1).The year was also remarkable because of the disputes that were settled, or otherwise terminated. Notably in two disputes, US – Upland Cotton and US – Clove Cigarettes, mutually agreed solutions (MAS) were reached without bringing the measure into conformity with DSB recommendations. An argument can be made that compensation is displacing compliance. This and other systemic issues arising out of the two MAS are discussed. Two more cases were terminated, EU – Atlanto-Scandic Herring and EC – Seal Products II. The former is guaranteed to stay of interest for WTO lawyers and anyone interested in public international law, the law of the sea, and EU law (Section 2). Sections 3 to 7 provide case summaries of the four Appellate Body Reports that were adopted during 2014 and the one Panel Report that was adopted without having first been appealed. EC – Seal Products captured the attention of the wider community of international law scholars, animal welfarists and environmentalists. It also contains some interesting clarifications on the relationship of the TBT Agreement with the GATT (Section 3). US –Countervailing and Anti-Dumping Measures (China) continues in the tradition of disputes on trade remedies between the US and China. It sheds light on a previously unexplored matter concerning the interpretation of Article X(2) of the GATT (Section 4). China – Rare Earths continues the trend of disputes being brought on export restrictions, and has to be seen in the context of the importance of some raw materials for the manufacturing of complex consumer goods and in the defence industry. At the heart of the dispute is the relationship between China’s Accession Protocol and the WTO Agreement (Section 5). US – Hot-Rolled Carbon Steel (India) provides insight into the definition of public bodies that public international lawyers as well as WTO lawyers will find useful, and offers clarifications on “cross-cumulation”, that is whether an investigating authority may cumulate the effects of subsidised imports with the effects of non-subsidised imports subject to anti-dumping measures (Section 6). Finally, China – Autos (US), though not appealed, offers an interesting application of the Anti-Dumping and SCM Agreements (Section 7).