Review - WTO Case Law in 2012

Abstract

This review of WTO Panel and Appellate Body reports handed down in 2012 aims at covering the case law of the WTO through short but analytical examination of the most important final decisions of this year. The approach followed is that of reviewing all final decisions (Reports) of WTO Panels and of the Appellate Body handed down in 2012 with a few exceptions. The Appellate Body issued six reports, all of which are reviewed except for the one on EC – Large Civil Aircraft. The most interesting aspect of the activity of the Appellate Body in 2012 probably regards the three cases concerning the Agreement on Technical Barriers to Trade (TBT Agreement): US – Clove Cigarettes, US Tuna II (Mexico) and US – COOL. This case law is particularly noteworthy because from its establishment, in 1995, the Appellate Body had only once dealt with a dispute concerning the TBT Agreement (EC – Sardines), in 2002. Therefore, the interpretation by the AB of key provisions of the TBT Agreement in these three cases stands as a major development whose import goes beyond the individual cases decided. Technical barriers to trade of various types, such as prohibition of the import of certain product (at issue in US – Clove Cigarettes), rules on the origin of products for environmental reasons (in US – Tuna II) and labeling requirements for information of the consumer (in US – COOL), appear to have become a major instrument of commercial policy of certain WTO members, a potential protectionist device and a source of frictions between WTO Members.

Keywords: WTO, GATT, GATS, TBT, China – Raw Materials, US – Clove Cigarettes, US – Tuna II (Mexico), US – COOL, China – GOES, China –Electronic Payment Services, Article XX GATT, Paragraph 11.3 of China’s Accession Protocol, Article XI:2 (a) GATT, National Treatment, Like Products, TBT Article 2.1