See all Google Scholar citations for this article. Your email address will be used to notify you when your comment has been reviewed by the moderator and if the article author(s) or moderator should contact you directly. 74 See, more generally, the discussion in Jackson, World Trade and the Law of the GATT, pp. 333-334. • The Understanding on the Interpretation of Article XVII of the GATT 1994 35 GATT Panel Report, Canada–FIRA, p. 163, paragraph 5.16. 42 Appellate Body Report, Canada–Wheat Exports, para. 89. [77] Ibid. Note that this is less extensive than the obligations imposed on monopolies in 1502, which will be dealt with later in this memorandum.
`an entity . is designated in any relevant market in the territory of a Party as the sole supplier or buyer of a good or service» means «to establish, designate or authorize a monopoly after the date of entry into force of this Agreement or to extend the scope of a monopoly to an additional good or service». [69] «State and non-state enterprises, including marketing committees, that have been granted exclusive or special rights or privileges, including legislative or constitutional powers, in the exercise of which they influence the direction of imports or exports through their purchases or sales.» [6] [19] Appellate Body Report, EC – Tariff Preferences, paragraph 153. . 7 Proposal for a Charter for a United Nations International Trade Organization, United States Department of State, September 1946 (Proposal for a Charter of the United States). A longer version of this paper was presented at Columbia Law School`s 2016 Business Seminar Series on State-Owned Enterprises in China: Business and Competition Issues. All views expressed should be attributed exclusively to the author and not to the WTO Secretariat. `are consistent with the normal business practices of the private undertakings of the undertaking or sector concerned`. [88] (b) «The provisions of point (a) of this paragraph shall be construed to mean that such undertakings, having due regard to the other provisions of this Agreement, shall make such purchases or sales exclusively in accordance with commercial considerations …». [32].
Comprehensive Economic and Trade Agreement, Canada-European Union, October 30, 2016. 62 Reports on the Revision of the Agreement, Other Barriers to Trade, adopted on 3 March 1955, BISD 3S/222-228 (Report of the Working Party 1955). 21 See e.B. Petersmann, USA, GATT Law on State Trading Enterprises: Critical Evaluation of Article XVII and Proposals for Reform, in Cottier, T. and Mavroidis, P. (eds.), State Trading in the Twenty-First Century, University of Michigan Press, 1998, pp. 71-96 Google Scholar, pp. 86-87. More information on the WTO`s work on TSEs is available on the WTO website. Appellate Body Report, Korea – Import Measures on Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001: I, 5.5.
Note by the Secretariat on the GATT Negotiating Group, «Article XVII (State Trading Enterprises)» 1988, MTN. GNG/NG7/W/15Add. 1. Paragraph 22.18 See e.B. Discussed in Notifications of State-Trading Enterprises, Final Report adopted on 24 May 1960, 9th Supp. BISD 179 (1960 Notifications Panel Report), p. 179. 180 22 According to Davey, that omission constitutes a possible element of vagueness in the definition. Davey, W., Article XVII GATT: An Overview, in Cottier and Mavroidis (eds.), State Trading in the Twenty-First Century, p.
25. The reference to a certain «private monopoly». and any State monopoly» means that this paragraph covers all monopolies falling within the scope of Chapter 15. «New and Complete Notification pursuant to Article XVII:4(A) of the GATT 1994 and Paragraph 1 of the Agreement on the Interpretation of Article XVII, Canada» online at the World Trade Organization <docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?language=E&CatalogueIdList=230119,125716,45242,16282,105033,72191,33263,26407,6939,10918&CurrentCatalogue. ". and is intended to give the commitments of other [shareholders] a reasonable opportunity, in accordance with normal commercial practice, to request participation in such purchases or sales" [53] `(d) does not use its monopoly position to engage, directly or indirectly, in anti-competitive practices in an un monopolised market to participate in its territory which adversely affects an investment by an investor. another party, including through discriminatory provision of the monopoly good or service, cross-subsidization or predatory behaviour." [97] Articles two and three respond to the fourth point of law by interpreting the non-discrimination obligations set out in Chapter 15 of NAFTA and Chapter 18 of CETA, respectively. As in the first section, this analysis clarifies the relationship between non-discrimination obligations and the need to act "in accordance with commercial considerations". To reach these conclusions, the meaning of the term "in accordance with commercial considerations" is analyzed to clarify how the commercial considerations of a particular state-owned enterprise are assessed. Sections Two and Three conclude by highlighting the differences between the scope of the non-discrimination obligations under these agreements and the GATT 1994. . [58] GATT, see footnote 1 to Article XVII(1)(b).
We are the ones who emphasize. – No HTML tags are allowed – Website URLs are displayed only as text- Lines and paragraphs are automatically interrupted- Attachments, images or tables are not eligible Appellate Body, United States – Measures Affecting Cross-Border Gambling and Service Improvement, WT/DS285/AB/R, adopted on 7 April 2005. 34 GATT Panel Report, Canada – Administration of Foreign Investment Review Act, L/5504, adopted February 7, 1984, BISD 30S/140 (Canada–FIRA); GATT Panel Report, Canada – Importation, Distribution and Sale of Alcoholic Beverages by Canada`s Provincial Marketing Agencies, L/6304, adopted 22 March 1988, BISD 35S/37; and the GATT Panel Report, Canada – Importation, Distribution and Sale of Alcoholic Beverages by Canada`s Provincial Marketing Agencies, adopted on 18 February 1992, DS17/R, BISD 39S/27. The use of the word «agreement» in the definition refers to the agreement as a whole, not exclusively to Chapter 15. Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 «an entity, including a consortium or governmental authority, designated as the sole supplier or buyer of a good or service in any relevant market in the territory of a Party; but not an entity to which an exclusive intellectual property right has been granted solely on the basis of such a concession. [66]. 30 See Roessler, who argues that «the national treatment provisions of Articles III:2 and III:4 … are broad enough to cover the State`s refusal to treat domestically imported commercial goods.» Roessler, F., «Comment: Canada–Wheat: Discrimination, non-commercial considerations, and the right to regulate through state trading enterprises,» World Trade Review, 7(1) (2008), pp. 67-69 CrossRefGoogle Scholar, p.
69. [87] GATT, note 1 above to Article XVII. 1) (b): «Price, quality, availability, merchantability, transport and other conditions of purchase and sale». 23 The same clarification was made in the 1960 report of the Notification Committee. GATT Panel Report, Canada – Administration of the Foreign Investment Review Act, passed February 7, 1984, BISD 30S/140. Published online by Cambridge University Press: 13 October 2017 [132] The consolidated text of CETA previously contained a definition of «public mandate», which has since been removed. [41] Analysis of the negotiating history shows that there are examples where only most-favoured-nation treatment and not national treatment should be included. In preparing the GATT 1994, the relevant subcommittee expressly recognized that only the most-favoured-nation obligation should apply. A proposal by the United States in the Uruguay Round to explicitly subject state trading corporations to the national treatment obligation was not accepted. See Ernst-Ulrich Peterman, «GATT Law on State Trading Enterprises: Critical Evaluation of Article XVII and Proposals for Reform,» T. Cottier and P.
Mavroidis (eds.), State Trading in the Twenty-First Century (The University of Michigan Press, 1998), page 71. That is, whether the obligation of non-discrimination is a different obligation from that of «acting on commercial grounds». It follows that Article XVII(1)(a) and (b) contains only one obligation. The analysis suggests that the non-discrimination obligations under Article XVII(1)(a) and (b) of the GATT include both most-favoured-nation and national treatment obligations. These obligations are mitigated by «commercial considerations». In this way, the principles of non-discrimination in Articles I and III are amended for Article XVII to allow state-owned enterprises to operate effectively. .