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The London School of Economics and Political Science The London School of Economics and Political Science Emergency Safeguard; WTO and the feasibility of Emergency Safeguard Measures under the General Agreement on Trade in Services S Gulrez Yazdani Student ID: 200511888 A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, October 2012 Declaration I certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 87,180 words. [See Regulations for Research Degrees, paragraphs 25.5 or 27.3 on calculating the word count of your thesis] II Abstract The General Agreement on Trade in Services (GATS) along with other agreements was concluded in the Uruguay Round of Multilateral Trade Negotiations in 1994. However, negotiations continued within the WTO framework and are still a work in progress on some specific issues under the GATS including the question of Emergency Safeguard Measures, which has been raised in Article X of the GATS as part of its ‘built-in agenda’. The thesis looks at the concept of the Emergency Safeguards Measures (ESMs) in the GATT/WTO and tries to develop an answer to the ‘question of ESMs’, which is deluding the negotiators and researchers for more than fifteen years. The thesis tries to analyse whether the GATT type ESMs can be transposed to GATS. It also explores that whether ESMs that are modelled on GATT are feasible under GATS, and if feasible, are these really desirable. If these are feasible and desirable then what should be their possible structure remaining within the existing GATT paradigm. The thesis walks through the provisions that already exist in the GATS to meet the circumstances perceived by the countries that are seeking specific ESMs under GATS and whether these provisions address the concerns of the demanders of the concept. The thesis not only takes into account the academic and legal literature on the subject but also and perhaps more practically, takes into account the dynamics of the negotiations, discussions and debates within the WTO system on the subject. The thesis tries to provide an in-depth analysis of the issue and goes beyond what is already available in the International Trade Law literature on the ESMs under the cross border trade in services. It seeks to answer a question that presently exists in the International Trade Law especially with reference to the law emerging out of WTO. III Table of Contents Chapter 1 .......................................................................................................................... 1 1.1 Chapter Introduction ......................................................................................... 1 1.2 Background: Landscape ......................................................................................... 1 1.3 Thesis Introduction ................................................................................................ 8 1.4 Thesis Outline And Organisation ......................................................................... 13 Chapter 2: Concept Of Esms: Evolution Thereof .......................................................... 15 Chapter 3: Esms: Issues And Agreement On Safeguards .............................................. 16 Chapter 4: Esms And Gats, ............................................................................................ 17 Chapter 5: Esm Regime: Adaptation Thereof Under Gats ............................................ 17 Chapter 6: Conclusions .................................................................................................. 18 Chapter 2: Concept Of Esms: Evolution Thereof .......................................................... 20 2.1 Introduction .......................................................................................................... 20 2.2 Background: Conceptual ...................................................................................... 20 2.3. Escape Clause: Evolution ................................................................................... 22 2.3. International Agreements: Escape Clause........................................................... 24 2.3.1. Economic Rationale ................................................................................. 26 2.3.2. Political Rationale .................................................................................... 29 2.3.3 Other Reasons ............................................................................................... 30 2.4. Escape Clause In Gatt ..................................................................................... 32 2.5. Esms Under Gatt 1947 ........................................................................................ 33 2.5.1 Article Xix Of Gatt .................................................................................. 33 2.4.2. Evolution Of Esms Under Gatt. ............................................................... 42 Chapter 3: Article Xix: Aos .......................................................................................... 46 3.1 Chapter Introduction ............................................................................................ 46 3.2 Background: Aos ................................................................................................. 47 3.3 Agreement On Safeguards (Aos) .................................................................... 49 3.3.1. Article Xix Of Gatt And Aos ................................................................... 52 3.3.2. Unforeseen Developments ....................................................................... 53 3.3.3. Increase In Imports And Serious Injury. ...................................................... 57 3.3.4. Domestic Industry, Like Products ................................................................ 61 3.3.5. Consultation, Retaliation Rights And Other Provisions. ............................. 64 3.3.6. Measures Applied, Linkages ........................................................................ 65 3.4. Esms And Regional Trading Arrangements .................................................... 66 3.5. Internal Law Provisions: The Eu And The Us. .............................................. 69 3.5.1. The Nafta & United States ....................................................................... 69 3.5.2 The European Union ..................................................................................... 72 3.6 Comments ............................................................................................................ 74 Chapter 4: Esms And Gats ............................................................................................. 76 4.1 Introduction: Chapter ........................................................................................... 76 4.2. Background ..................................................................................................... 77 4.3 Gats: Introduction ................................................................................................ 80 4.4. Esms And The Gats ......................................................................................... 85 IV 4.4.1. Background .................................................................................................. 85 4.4.2 Esms Under Gats ........................................................................................... 89 4.5. Gatt/Wto Concepts: Applicability To Gats ......................................................... 92 4.6. Gatt Paradigm: Transposition Issues .................................................................. 93 4.6.1 Obligations Incurred ..................................................................................... 94 4.6.2 Statistical Concerns ....................................................................................... 97 4.6.3. Like Services And Transparency ............................................................... 101 4.6.4 Unforeseen Developments .......................................................................... 108 4.6.5 Imports And Domestic Production, ............................................................ 110 4.6.6. Determination Of Injury............................................................................. 115 4.6.7. Compensation, Causality, Provisional Application ................................... 118 4.6.8 Choice Of Measures And Modal Issues ...................................................... 121 4.6.9 Conditions Of Application .......................................................................... 126 4.7. Public Policy Concerns ..................................................................................... 127 4.8. Conclusions ....................................................................................................... 128 Chapter 5: Esms Under Gats .......................................................................................
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