WTO Appellate Body Report: Gasoline - United States - Standards for Reformulated and Conventional Gasoline

Abstract:     
This note focuses on the “international trade” perspective of this case in terms of both substantive law, concentrating on Article XX (General Exceptions) of the General Agreement of Tariffs and Trade 1994 (GATT 1994) and procedural law found in the Dispute Settlement Understanding (DSU). This note is divided into five parts. Part I-IV digest the factual background leading up to the case, the Panel report, the U.S. appeal, and the Appellate Body Report. Part V critiques the analysis of Appellate Body’s ruling and raises questions distilled from the analysis of this case. In particular, this part argues that the Appellate Body failed to delve into an important legal issue – the applicability of Agreement on Technical Barriers to Trade (TBT) – in the name of judicial economy; that it replaced legal analysis by consensus (acquiescence) of the disputants; that it disregarded a conditional appeal merely on a formalistic ground; that it was not faithful to the principle of treaty interpretation by downplaying the ordinary meaning; that it conducted the necessary test in interpreting the chapeau, thereby leading to the dilution of the distinction between “necessary” and “relating to”. This note concludes that the Appellate Body review should be more judicialized and that Member countries should exert more effort in regulatory cooperation in order to address the trade-off between free trade and domestic regulation.

Number of Pages in PDF File: 17

Keywords: international trade, GATT, Article XX

Accepted Paper Series