In The Regulation of International Trade, Petros Mavroidis offers a comprehensive and up-to-date overview of the interpretation and application of the GATT and the WTO Agreements on Trade in Goods. He explains each discipline with admirable simplicity, without overlooking the complexity and inherent intricacies of WTO law. This makes this book interesting and useful to any reader regardless of his/her level of knowledge and expertise in WTO law.
The book consists of two volumes: The first volume focuses on regulation of trade by the GATT; and the second covers the WTO agreements regulating trade in goods. Both volumes are closely intertwined and complement each other. The author links the various disciplines to offer the reader a complete picture and maintains a coherent chapter structure
First, he starts with a discussion of the legal discipline at issue, describing its rationale and linking it to negotiating records, if available, and the relevant case law. In some instances, the author points out any discrepancies that might exist, in his view, between the negotiating record and case law. The author also provides an economic foundation, as well as the policy background for each provision discussed, combining it with real-life examples to further illustrate each point.
Secondly, the author addresses what he defines as ‘subsequent practice’. In this part, he presents the available case law, up until December 2014, with the objective of explaining how the various terms are generally understood nowadays. Thereafter, he moves on to discuss literature that, in his view, has provided useful criticism of the interpretations of the various legal provisions. He considers that criticism is useful if it points to a logical error; describes situations in which ‘courts’ have behaved like principals and not like agents; or that they have been behaving inconsistently, amongst other reasons.
Finally, the author provides his own criticism, asking whether any given outcome is reasonable. When he considers the outcome to be unreasonable, he tries to respond to the question whether the source of the unreasonableness lies in ‘law’ or in the ‘case law’. In some instances, however, the author had to deviate from this structure, due to the nature of the discipline and the case law, or lack thereof.
The reader will also observe that the structure and order in which the author decided to discuss each discipline is in a way peculiar. The author openly acknowledges that he changed his mind ‘a dozen of times’ about the structure of the book.
Bearing this in mind, the author starts volume 1 with the history of the GATT and the WTO. Moving to the substantive provisions, Chapter 2 is devoted to the analysis of quantitative restrictions. He then continues with tariffs regulations (Chapter 3); most favoured nation treatment (Chapter 4); special and differential treatment (Chapter 5); and preferential trade agreements (Chapter 6). Then, the author addresses internal regulations (i.e., national treatment in Chapter 7 and State Trading Enterprises in Chapter 8). Finally, he addresses the general exceptions (Chapter 9).
Volume 2 starts with Annex 1A Agreements dealing with customs procedures (Chapter 1). As part of customs procedures, the chapter covers the Import Licensing Agreement, the Customs Valuation Agreement, the Agreement on Preshipment Inspection and Trade Facilitation.
Volume 2 continues with the assessment of trade remedies: Antidumping (Chapter 2); Subsidies (Chapter 3); and Safeguards (Chapter 4); followed by technical barriers to trade (Chapter 5); sanitary and phytosanitary measures (Chapter 6); and trade-related investment measures (Chapter 7).
Finally, the author addresses issues related to the Agreement on Agriculture (Chapter 8); the Agreement on Textiles and Clothing (Chapter 9); government procurement (Chapter 10); the Civil Aviation Agreement (Chapter 11); and ends with the horizontal issue of transparency (Chapter 12).
As one progresses through the book, the order of analysis chosen by the author makes sense. He manages to maintain a fil conducteur through the different chapters and between the two volumes.
This review does not intend to be exhaustive and will only highlight some elements that may provide the reader with a ‘flavour’ of Mavroidis’ book.
The first chapter contains a truly enjoyable historical background from the GATT to the WTO. It starts with a description of the first attempts to liberalize trade at the multilateral level and the pre-war pilots between 1927 and 1932. Mavroidis continues with an historians’ account of the GATT negotiations and its entry into force, which is immediately followed by a description of the evolution of trade liberalization under the GATT and concludes with the creation of the WTO.
Notably, Chapter 1 does not only describe what happened but how it happened and who made it happen. Amongst other interesting facts, the author describes the particular circumstances surrounding the attempts to liberalize trade at the multilateral level, including a description of the economic theories and ideologies that inspired negotiators during the process leading to the current GATT disciplines.
Chapter 2 deals with quantitative restrictions. This chapter is not limited to the description of quantitative restrictions under Article XI of the GATT. It also covers a number of other GATT disciplines, such as balance of payments (Article XII and XVIII), exchange arrangements (Article XV), and the non-discriminatory administration of quantitative restrictions (Article XIII).
Chapter 3 describes the legal discipline of tariffs. In this chapter, the author provides ample explanations on, inter alia: the different types of custom duties and other duties or charges; the economics behind tariffs; how the tariff classifications are to be used and interpreted; and the methods/methodologies that Members have adopted to negotiate tariff concessions.
In Chapter 4, further to the description of the principle of Most Favoured Nation (MFN), the reader will find an interesting discussion on rules of origin and real-life examples of the importance of these rules in international trade. It is also worth noting the author's opinion that, in theory, the consistency of preferential rules of origin with the WTO Agreements can be challenged as being regarded as ‘other regulations of commerce’ (Article XXIV:5 of the GATT 1994) or as ‘restrictive regulations of commerce’ (Article XXIV:8 of the GATT 1994). The author provides a detailed explanation in Chapter 6, volume 1, about the possible reasons why there has been so little litigation regarding preferential trade agreements. Chapter 6 also describes the issue of preferential trade agreements and how Members can deviate from their obligations to provide MFN treatment, provided that they satisfy the requirements in Article XXIV of the GATT 1994.
Chapter 8 discusses state trading enterprises (STEs). One of the outstanding aspects of this chapter is the description of the negotiating record that led to the regulation of STEs. In line with this negotiating history, the author explains the disciplines contained in Article XVII of the GATT. Article XVII does not define STEs. Through deductive reasoning and based on the negotiating history, the author tries to elucidate the type of enterprises that would be covered by Article XVII of the GATT.
Finally, Chapter 9 discusses in detail the exceptions to and departures from GATT obligations. The author focuses on four instruments:a general exceptions (Article XX of the GATT); national security (Article XXI of the GATT); non-application (Article XXXV of the GATT and Article XIII of the Agreement Establishing the WTO); and waivers (Article XXXV of the GATT and Article IX of the Agreement Establishing the WTO).
While the content of this chapter is heterogeneous, it covers pretty much and in great detail all exceptions to and departures from the obligations assumed by WTO Members under the GATT. Moreover, in this chapter, the author points to the different trends in case law and how panels and the Appellate Body have approached exceptions. He particularly criticizes the Appellate Body ruling in EC–Seals and contrasts this case with the legal standard in Brazil–Retreaded Tyres, pointing out what he considers to be contradictions between these two cases.
One of the salient elements of this chapter is the discussion of the lack of quantification of the trade impact of the measure at issue and the so-called less restrictive alternatives, so that one can establish that an instrument is, in effect, less trade restrictive than another.
Now, turning to volume 2 – as indicated earlier, the author starts with an analysis of the agreements dealing with customs procedures (Chapter 1), including a comprehensive explanation of the Trade Facilitation Agreement. Given the very recent entry into force of this agreement, the reader will find this section of current interest.
Chapters 2, 3, and 4 cover trade remedies, i.e. antidumping, subsidies, and safeguards. In more than three hundred pages, the author dissects the Antidumping Agreement, the Subsidies Agreement, and the Safeguards Agreement.
A feature common to these three chapters is that the author describes the substantive obligations under each of the above-mentioned Agreements; addresses the procedural aspects of the investigations leading to the imposition of antidumping duties, countervailing, or safeguard measures; and, finally, except for the chapter on safeguard measures, describes the standard of review applied by WTO adjudicating bodies.
Particularly, in Chapter 2, the reader will also find an interesting analysis of the fairness of dumping. The author provides the historical background to modern antidumping laws, followed by a description of the differences between antidumping and antitrust enforcement, and the differences in how the two respective disciplines approach price discrimination.
Turning to Chapter 5, the author starts with the question on why Members negotiated the Agreement on Technical Barriers to Trade (TBT) and explains to what extent Article III of the GATT was considered to be insufficient to address non-tariff barriers. He also explains the reasons underpinning standardization, such as the cost of having divergent standards in place. In this chapter, the author makes the case for international cooperation to reduce costs (i.e., to avoid rent-seeking behaviour from domestic lobbies).
Before describing the instruments covered by the TBT Agreement (i.e., technical regulations, standards, and conformity assessment), the author devotes an important part of Chapter 5 to the discussion of ‘private standards’. Usefully and very much in tune with current discussions in the TBT Committee, the author raises awareness about the increasing proliferation of private standards and provides his view as to how (and when) these private standards could be regulated by the TBT Agreement.
When describing the instruments covered by the TBT Agreement, the author provides a critical view on the way panels and the Appellate Body have decided TBT cases. The author criticizes, inter alia: the Appellate Body's interpretation of the 2000 Decision of the TBT Committee, which the Appellate Body characterized as a “subsequent agreement” within the meaning of Article 31 of the Vienna Convention on the Law of Treaties; the decision by the Appellate Body with respect to the burden of proof to show whether, in the case of deviation from an international standard, deviation was TBT-consistent; the fact that the Appellate Body left open in EC–Seals whether a process and production methods (PPMs)-based measure was covered by the TBT Agreement; the Appellate Body's finding in US–Tuna that the US measure at issue in that dispute was a (mandatory) technical regulation while, in the author's view, it should have been regarded as a (non-binding) standard; the fact that three different panels had reached, in 2011, irreconcilable interpretations of non-discrimination and that the Appellate Body, in the author's view, confused non-discrimination with necessity; and the requirement of the Appellate Body that less favourable treatment must originate exclusively in the legitimate regulatory distinctions in order to be consistent with Article 2.1 of the TBT Agreement.
Chapter 6 covers sanitary and phytosanitary (SPS) measures. The author follows almost the same approach as in the previous chapter. The reader will find many references to Chapter 5, as many of the author's observations on the TBT Agreement are also applicable to the SPS Agreement. Moreover, the reader will find an interesting discussion of precautionary measures. In particular, the author points out that case law, so far, has not yet addressed the question of whether precautionary measures must observe the non-discrimination obligation, the consistency requirement, and the necessity requirement (Articles 2.3, 5.5, and 5.6 of the SPS Agreement, respectively). The question of burden of proof with respect to the different elements of the SPS Agreement is also addressed.
Chapter 7 refers to trade-related investment measures (TRIMs). In this chapter, the author provides an important historical background on trade and investment. He describes the position of some of the WTO players that were hostile to a negotiation of WTO disciplines on investment. This chapter also covers the attempts to negotiate a ‘Multilateral Agreement on Investment’ (MIA), in the framework of the OECD. In addition to this historical background and the rationale for these disciplines, the author provides a general description of the TRIMs obligations and their relationship with other provisions of the GATT and WTO Agreements.
In Chapter 8, the author addresses the Agreement on Agriculture. This chapter complements Chapters 2 and 3 of volume 1 with regard to market access for goods.
Chapter 8 also contains an interesting discussion of the volatility of agricultural markets and of the views of developing countries who did not always consider agricultural trade as a driver for development. The chapter also describes the relationship of the Agreement on Agriculture with the GATT (e.g., Article XI.2 and Article XX of the GATT) and other WTO Agreements (e.g., the SCM Agreement and the Safeguards Agreement). Under the subheading ‘The Road to the AG Agreement’, the author provides essential historical details to understand the intricacies and rationale of the trade disciplines relating to agriculture. This is an interesting discussion of why Members have been unable to continue liberalization of this sector.
Chapter 9 discusses the Agreement on Textiles and Clothing, which has already been phased out. Since 2005, trade in textiles and clothing has been governed by GATT disciplines, already covered in Chapters 2–9, volume 1. While Chapter 9 has only historical value, it completes the picture on the disciplines applicable to trade in goods.
The next two Chapters, 10 and 11, discuss the two plurilateral agreements currently in force: i.e., the Government Procurement Agreement and the Agreement on Trade in Civil Aircraft.
Government procurement disciplines are comprehensively covered in Chapter 10, from the Tokyo-round Code to the revised Government Procurement Agreement (GPA), which entered into force on 6 April 2014. This chapter also contains an interesting assessment of, inter alia, the relation between the GPA and the GATT; procurement and competition policy; as well as procurement and the fight against corruption. The author dissects the GPA, starting with the entities and measures covered, followed by the specific GPA obligations.
Chapter 11 covers the Agreement on Trade in Civil Aircraft. The author provides an interesting overview of the two existing civil aircraft duopolies and of the US–EU 1992 Agreement on Civil Aviation. Subsequently, the author analyses the relation between the Agreement on Large Civil Aircraft, on the one hand, and the GATT and the Annex 1A Agreements, on the other. He concludes that the Agreement on Large Civil Aircraft has limited relevance due to the combination of Article II of the GATT with the advent of the SCM Agreement.
The last chapter, Chapter 12, provides an overview of issues related to transparency. The chapter highlights the evolution of transparency-related disciplines, starting with the obligations contained Article X of the GATT; moving on to the trade policy review mechanism (TPRM) and cross-notifications; and ending with the Integrated Data Base (IDB) and the WTO Director General's monitoring reports.
In sum, The Regulation of International Trade by Petros Mavroidis is a book that every person interested in the study of WTO law must have and must read. It provides a comprehensive and succinct overview of the interpretation and application of the GATT and the WTO Agreements on Trade in Goods. The book also provides the reader with different tools for the interpretation and understanding of the different provisions of the GATT and the Agreements covering trade in goods, namely the historical background as well as the economic and policy rationale behind each discipline. As the cherry on the cake, the book also provides food for thought by providing access, in one stop, to the views of many scholars, including those of Petros Mavroidis.