Unit 6 - Problems & Exercises

All students should work the following problems as though you had to address them under GATT/WTO Article III:

a. US Car Taxes (but ask yourself how to reconcile competing concerns like environmental imperatives addressed under Article XX exceptions?)

b. Danish Beer Bottles (note that this is an EU treaty case--  .33 liter green Carlsburg and Tuborg bottles versus .5 liter brown Maisel and Paulaner bottles--, but ask how you think it would turn out under Article III?)

We shall assign to one group of students the comparative problem of working on national treatment standards under GATT/WTO Article III that can be applied under different standards, namely cases like the Japan liquor dispute involve arguments about whether you can play with product categories  to treat products differently, versus trying to provide special benefits like postal subsidies to Canadian magazines in the Sports Illustrated dispute.  (FYI, another well-known and more successful differentiation example from the pre-crossover vehicle days involved a dispute whether imported SUVs for tariff purposes should be treated as cars versus trucks, since tariff rates on cars were much higher.)  You should read all the DSB opinions, panel and appellate, and report on whether you think standards are “unitary” for national treatment, versus differing substantially depending upon whether you are looking at a product differentiation case, versus a special benefits case?  Then, how to formulate a rule to advise clients, given that there is no formal doctrine of precedent in public international law?  The group should report back to the class on their broader effort to synthesize outcomes in the differing kinds of national treatment cases.

Again for all students, if you want a digital economy example, think of AliBaba in China and Amazon in the US increasingly expanding e-commerce into Asia.  What happens when they first expand in the rest of Asia, but presumably eventually might engage on each other’s “territory” for commercial reasons?  So how is this e-commerce across borders supposed to work, can you work off a simple non-discrimination clause like GATS Art XVII, or do we need broader provisions like TPP’s ad-hoc or USMCA’s copycat provisions?   China is actually not currently a party to TPP, which was in part designed to assert certain standards in terms of trying to establish “rules of the road” for trade in Asia over the next 20-50 years.  But China is already expanding e-commerce into SE Asia, which the Indonesian students would recognize because of AliBaba’s acquisition of lazada.com as leading Southeast Asian e-commerce operation.  Lazada currently would operate within the AEC, but the cross-border question for e-commerce from ASEAN countries into China presumably must be addressed in on-going RCEP negotiations.  It may all sound like alphabet soup, but the clients are really heavily engaged on the issue of TPP with or without the US, and the already major focus on the digital economy has only been increased by the COVID-19 challenge.

For all students, we shall eventually cover the Trade Related Intellectual Property (TRIPs) Agreement in Unit 11 as the WTO’s attempt to provide minimum standards and protection for intellectual property via the trade law system.  If TRIPs is the traditional trade law treatment of intellectual property under the 1994 WTO Agreement, why or why not would you expect the digital economy either to be the subject of some global digital economy standard, versus simply to be subject to a national treatment principle with foreigners adhering to local standards?  What is different about the internet as opposed to traditional intellectual property categories like patent, trade or service marks, copyright, trade secret, industrial design, sui generis IC chip statutes and the like?  What do you think is the relationship between intellectual property as such and services in the digital economy?