1300 187 187
This work on the law of subsidies has been long-awaited by many actors in international trade. With its introduction of the concept of 'attenuation' of entitlement, Marc Benitah's utterly new analysis alters our understanding of the international economic law of subsidies - and its future invocation and jurisprudence - forever.The issue of subsidies is arguably the predominant theme, at this moment, in international economic law, and a consistent approach to the legal treatment of subsidies is urgently needed. In Professor Benitah's view, the answer lies in the recognition that entitlements granted to a party seeking to defend itself against the `adverse effects' of subsidies must be `attenuated' in order to avoid undesirable economic and social consequences. In the various techniques of attenuation - thoroughly described and analyzed in this book - may be found the unifying thread on which a logical, coherent law of subsidies may be strung. Why techniques of attenuation are intimately linked to the birth of past and future legal disputes relating to subsidiesWhy significant techniques of attenuation (e.g. taking into account the positive impact of a subsidy on consumers) have not arisen in the GATT/WTO contextWhy much recent theoretical debate on the concept of 'distortion' has not led to a breakthrough in the law of subsidiesWhy attenuations favouring developing countries are surprisingly legally vulnerable in practiceWhy deliberate recourse to techniques of attenuation necessitates their continuing clarification through a case law process. By referring to the legal materials of both the GATT 1947 and the WTO systems at each point in his demonstration, Professor Benitah lays a substantial groundwork for determining innovative WTO norms.
| Acknowledgments | p. ix |
| Abbreviations | p. xi |
| Introduction | p. 1 |
| Legal Techniques for Attenuating Entitlements Granted to the Party Allegedly Affected by a Subsidy | p. 7 |
| Explicit Techniques of Attenuation | p. 11 |
| Effect-based Norms | p. 11 |
| Attenuations Favoring Developing Countries | p. 35 |
| The De Minimis Technique of Attenuation | p. 44 |
| Attenuations Favoring Countries in Economic Transition | p. 46 |
| Implicit Techniques of Attenuation | p. 51 |
| The "Mutually Satisfactory Solution" | p. 51 |
| The Poorly Defined Concept | p. 58 |
| The Ambiguous Silence as to the Link Between Two Texts | p. 62 |
| Techniques of Interpretation Functioning as an Attenuation | p. 65 |
| Placing Functionally Similar Practices Beyond the Field of Subsidies | p. 68 |
| The Absence of Special Treatment for Special Subsidies | p. 77 |
| Intensifying the Burden of Proof as an Implicit Technique of Attenuation | p. 84 |
| The Relative Weakness of Attenuations in the Countervailing Duty Field | p. 87 |
| Attenuations Derived From the Simple View of "Distortion" and Constraining the Identification of a Countervailable Subsidy | p. 87 |
| Dilution of Required Effects | p. 93 |
| An Unexploited Technique of Attenuation: The Legal Absence of Consumers | p. 97 |
| Attenuations Favoring Developing Countries in the Field of Countervailing Duties: A Dubious Privilege | p. 111 |
| Imprecise Requirements with Respect to the Initiation of Countervailing Duty Proceedings | p. 113 |
| Techniques of Attenuation as a Seed for the Birth of Legal Disputes | p. 117 |
| Legal Disputes Arising from the Ambiguous Link between Two Texts | p. 119 |
| The Relationship between Article I of the 1947 General Agreement and the Tokyo Round Subsidies Code (GATT/1947 System) | p. 119 |
| The Airbus Case (GATT/1947 System) | p. 125 |
| Relevance of the Tokyo Round Illustrative List for the Definition of a Countervailable Subsidy (GATT/1947 System) | p. 132 |
| A Variation on this Theme in the WTO System: The A Contrario Saga | p. 141 |
| The Issue of Admissibility in the Pasta Case (GATT/1947 System) | p. 151 |
| Potential Issues as to the Relationship between WTO Agreements | p. 154 |
| Disputes Arising from Poorly Defined Concepts | p. 173 |
| The "More than Equitable Share" Criterion (GATT/1947 System) | p. 173 |
| The Absence of a Definition of the "Material Advantage" Criterion (WTO System) | p. 181 |
| "Inconsistency with Development Needs": A Criterion nearly Impossible to Satisfy (WTO System) | p. 185 |
| The Ambiguity of the "Otherwise Due" Criterion and the Possibility of Multiple Universal Reference Sets (WTO System) | p. 187 |
| The "In Fact Tied" Criterion: Tentative Rulings (WTO System) | p. 190 |
| The Failure of Extremist Techniques of Interpretation | p. 199 |
| The Failure of Country B's Sophisticated Economic Interpretations | p. 199 |
| The Wine Grape Case (GATT/1947 System) | p. 199 |
| The Attempt to Convert an Indirect Subsidy into a Direct Subsidy (GATT/1947 System) | p. 205 |
| The Failure of Analyzing a Subsidy as Benefiting a Merchandise Rather than a Firm (WTO System) | p. 212 |
| Attempts to Sophisticate the Standard Case Law Definition of "Benefit" (WTO System) | p. 214 |
| The Attempt to Treat Export Restraints as Subsidies | p. 218 |
| The Failure of Attempts to Intensify Country B's Attenuations Through an Extremist Technique of Interpretation | p. 225 |
| The Attempt to Differentiate Producers Receiving the Subsidy and Producers Benefiting from the Subsidy (GATT/1947 System) | p. 225 |
| The Failure of the Net Cost Approach to "Benefit" (WTO System) | p. 227 |
| The Attempt of an Ultra-restrictive Interpretation of "Payment" (WTO System) | p. 230 |
| The Failure of the Formalistic Interpretation of "Financed by Virtue of Governmental Action" (WTO System) | p. 235 |
| Vulnerability of Attenuations Favoring Developing Countries | p. 239 |
| Vulnerability of the Eight-year Exemption Relating to Prohibited Export Subsidies | p. 239 |
| Vulnerability of the Exemption Relating to Subsidies Contingent on the Use of Domestic Products | p. 243 |
| Vulnerability of the Protection Against the "Serious Prejudice" Claim | p. 248 |
| The Difficulty to Apply Coherently Attenuations Derived from the Concept of "Distortion" | p. 251 |
| Different Views of "Distortion" | p. 252 |
| Attenuations Derived from the Simple View of "Distortion" | p. 256 |
| Legal Treatment Reflecting the Sophisticated View of "Distortion" | p. 267 |
| "Distortion": A Poor Guide for Explaining Several Normative and Interpretative Choices | p. 273 |
| Causality between Subsidy and Injury for the Purpose of Countervailing Duties: A Legally Indeterminate Attenuation | p. 281 |
| International Texts: A "Double Bind" Scenario | p. 281 |
| The Confusion of National Legislation and Case Law Faced with the Indeterminacy of International Texts: The Case of the United States | p. 289 |
| The Confusion of National Legislation and Case Law Faced with the Indeterminacy of International Texts: The Case of the European Union | p. 296 |
| The False Dilemma between the Effects of "Subsidized Imports" and the "Effects of the Subsidy": Critical Analysis of the Panel's Report on Atlantic Salmon | p. 300 |
| Obstacles in the Way of Clarifying Attenuated Norms through the Case Law Process | p. 305 |
| Panel's Reluctance to Rule Clearly | p. 307 |
| Adoption of the Panel's Report and the veto of the Losing Party | p. 314 |
| Conflicting Interpretations of the Panel's Report | p. 318 |
| Implementation Made Dependant upon the Uruguay Round Negotiations | p. 333 |
| Procedural Obstacles as a Reaction to the Quasi-automatic Establishment of a Panel in the WTO System | p. 336 |
| Lost Opportunities for the Case Law Process | p. 342 |
| Annex | p. 355 |
| Bibliography | p. 413 |
| Table of Cases | p. 414 |
| Index | p. 415 |
| Table of Contents provided by Syndetics. All Rights Reserved. |
ISBN: 9789041198273
ISBN-10: 904119827X
Audience:
Professional
Format:
Hardcover
Language:
English
Number Of Pages: 336
Published: November 2001
Publisher: Kluwer Law International
Dimensions (cm): 24.1 x 16.5
x 2.5
Weight (kg): 0.785
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