1 The Law of International Trade and the Multilateral Trading System

Ⅰ.Some Background Considerations

A.What Is the Law of International Trade?

B.Distinguishing the Law of International Business Transactions and the Law of International Trade

1.The Law of International Business Transactions

2.The Law of International Trade

3.Three Levels of Analysis

Notes and Questions

Problem 1-1

Ⅱ.International Trade Flows

Problem 1-2

A.Trade in Goods

B.Services Trade

C.Foreign Direct Investment

D.Technology Trade

Notes and Questions

Problem 1-3

Ⅲ.The Principal Global Economic nstitutions

A.The World Bank

Notes and Questions

B.The International Monetary Fund

Notes and Questions

Problem 1-4

C.The World Trade Organization （WI'O）

Mitsuo Matsushita, Thomas J.Schoenbaum, and Petros C.Mavroidis, The World Trade Organization: Law, Practice and Policy

Notes and Questions

Ⅳ.The Case for Free Trade: A Brief Look at International Economics

A.Arguments in Favor of Free Trade

Problem 1-5

Douglas Irwin, Free Trade Under Fire （2004）

Notes and Questions

B.United States-China Economic Relations

Problem 1-6

1.The Growing U.S.Trade Deficit with China

2.Currency Valuation Issues and “Hoarding” by China

3.Risks Created by the Trade Deficit with China

Notes and Questions

Ⅴ.Negotiating Trade Concessions

The Doha Development Agenda of 2001

Notes and Questions

Ⅵ.Dispute Settlement

A.General Considerations

Notes and Questions

Notes on Implementation and Remedies

United States—Standards for Reformulated and Conventional Gasoline

Problem 1-7

Problem 1-8

B.Trade Remedies

C.Nullification or Impairment

Problem 1-9

United States—Taxes on Petroleum and Certain Imported Substances

Problem 1-10

EEC—Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins

Japan—Measures Affecting Consumer Photographic Film and Paper

Notes and Questions

D.Burden of Proof

Canada—Measures Affecting the Importation of Milk and the Exportation of Dairy Products

Notes and Questions

E.Principles of Interpretation and Status of Adopted Reports

Problem 1-11

Japan —Taxes on Alcoholic Beverages

Notes and Questions

F.Trade Retaliation Under National Laws

Problem 1-12

Mitsuo Matsushita, Thomas J.Schoenbaum, and Petros C.Mavroidis, The World Trade Organization: Law,Practice and Policy

Notes and Questions

United States—Sections 301-310 of the Trade Act of 1974

Notes and Questions

Ⅶ.Preferential Trade Agreements

A.Introduction

Problem 1-13

Problem 1-14

B.The North American Free Trade Agreement: An Overview

Problem 1-15

Note on Labor and Environmental Standards in Preferential Trade Agreements

Note on Worker Productivity

2 The Implementation of International Trade Obligations in the Domestic Legal Order

Ⅰ.Introduction

Ⅱ.Domestic Implementation of International Trade Obligations

A.The United States

1.The Executive Branch

2.The Legislative Branch

3.The Judicial Branch

4.State and Local Government

5.Problems in the Allocation of Power over Trade

a.Negotiating a Trade Agreement

b.Treaty versus Executive Agreement

United States Department of State, Foreign Affairs Manual Circular No.175 （2d ed.1985）

Notes and Questions

c.Presidential Power over International Trade

Problem 2-1

United States v.Capps, Inc

Dames ? Moore v.Regan

Notes and Questions

d.The Clash Between State and Federal Power

Problem 2-2

Problem 2-3

Crosby v.National Foreign Trade Council

Notes and Questions

Problem 2-4

B.The European Union

Agreement Establishing the World Trade Organization

Problem 2-5

Ⅲ.The Effect of Ⅲnternational Trade Agreements on Domestic Law and Resolving Conflicts Between International and Domestic Law

A.The United States

Problem 2-6

Problem 2-7

The Uruguay Round Agreements Act （1994）

Notes and Questions

Problem 2-8

B.The European Union

Portuguese Republic v.Council

Notes and Questions

3 The Core Principles of the WTO: Most Favored Nation and National Treatment

Ⅰ.Introduction

Ⅱ.The Most Favored Nation Principle

Problem 3-1

Problem 3-2

Problem 3-3

Problem 3-4

A.Scope of the MFN Obligations

Problem 3-5

Problem 3-6

Belgian Family Allowances （Allocations Familiales）

Notes and Questions

B.The “Like Product” Issue

Treatment of Germany of Imports of Sardines

Notes and Questions

Problem 3-7

C.De Facto Discrimination

Canada —Certain Measures Affecting the Automotive Industry

Notes and Questions

D.Exceptions to MFN Obligations

Ⅲ.National Treatment

Problem 3-8

Notes and Questions

A.Internal Taxes and Charges

Japan —Taxes on Alcoholic Beverages

Canada —Certain Measures Concerning Periodicals

Notes and Questions

B.Government Regulation

Problem 3-9

Italian Discrimination Against Imported Agricultural Machinery

Problem 3-10

Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef

Notes and Questions

Problem 3-11

C.Government Procurement

Norway—Procurement of Toll Collection Equipment for the City of Trondheim

Notes and Questions

4 Intellectual Property and TRIPs

Ⅰ.Introduction

A.Intellectual Property and International Trade

B.Intellectual Property and the WTO

C.TRIPs: An Overview

Ⅱ.Copyright

Phil Collins v.Imtrat Handelsgesellschaft GmbH

Notes and Questions

Ⅲ.Patents

A.Introduction

Problem 4-1

Notes and Questions

Problem 4-2

Problem 4-3

B.TRIPs and Pharmaceutical Patents

Problem 4-4

Problem 4-5

1.The Doha Declaration

DOHA WTO Ministerial Conference 2001: TRIPs and Public Health

Problem 4-6

2.The Implementation Decision

Implementation of Paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health

Notes and Questions

3.Exceptions and Discrimination

Problem 4-7

Canada—Patent Protection of Pharmaceutical Products

Notes and Questions

Ⅳ.Trademarks and Geographical Indications

A.Trademarks

Problem 4-8

Problem 4-9

McDonald's Corp.v.Joburgers Drive-Inn Restaurant （Pty） Ltd

Notes and Questions

Problem 4-10

United States —Section 211 Omnibus Appropriations Act of 1998

Notes and Questions

B.Geographical Indications

Problem 4-11

Problem 4-12

Problem 4-13

Consorzio del Prosciutto di Parma v.Asda Stores, Ltd

Notes and Questions

Problem 4-14

Ⅴ.Enforcement Under TRIPs

A.Commercial Piracy

Statement of Professor Daniel Chow before the Senate Government Oversight and Management Subcommittee,April 20, 1994

Oral Testimony of Professor Daniel Chow before the United States-China Economic and Security Review Commission,June 8, 2006

Note on Trade Sanctions Under U.S.Special 301

Notes and Questions

Problem 4-15

B.TRIPs Enforcement Obligations

1.General Obligations

Problem 4-16

Notes and Questions

2.Criminal Enforcement

Problem 4-17

Notes and Questions

3.Civil and Administrative Enforcement

Notes and Questions

4.Border Controls

a.Customs Seizure and Forfeiture

Notes and Questions

b.Section 337 Exclusion Orders

Fuji Photo Film Co., Ltd.v.International Trade Commission

Notes and Questions

5 Trade in Services and the GATS

Ⅰ.Introduction

A.GATS, TRIPs, and GATT Compared

Ⅱ.The Definitions of “Services” and “Modes of Supply”

Notes and Questions

Ⅲ.GATS Obligations

A.General Obligations

Problem 5-1

Problem 5-2

Problem 5-3

B.Obligations for Committed Sectors

Problem 5-4

Problem 5-5

Problem 5-6

Notes and Questions

Note on the Lists of Article Ⅱ （MFN） Exemptions

Ⅳ.Market Access Commitments

Problem 5-7

Format for Country Schedules of Specific Commitments

Sample Schedule of Commitments: Arcadia

Problem 5-8

United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services

Notes and Questions

Note on Cross-Border Trucking Services Under NAFTA

Ⅴ.Sectoral Annexes to the GATS

Problem 5-9

Mexico—Measures Affecting Telecommunications Services

Notes and Questions

6 Foreign Direct Investment and TRIMS

Ⅰ.Introduction

Problem 6-1

A.FDI Within World Trade

Notes and Questions

Ⅱ.The Agreement on Trade-Related Investment Measures （TRIMS）

Problem 6-2

Canada—Administration of the Foreign Investment

Review Act

Problem 6-3

Indonesia —Certain Measures Affecting the Automotive Industry

Notes and Questions

Problem 6-4

Problem 6-5

Note on the Outlook for a General Agreement on Investment in the WTO

7 Trade in Goods: Customs and Tariff Law

Ⅰ.Introduction

A.Tariff Concessions

B.Economic and Social Policy Implications of Tariffs

Notes and Questions

Problem 7-1

Ⅱ.GATT Rules on Tariffs and Customs

Problem 7-2

Problem 7-3

Problem 7-4

Problem 7-5

Notes and Questions

Ⅲ.The Harmonized Tariff System

Problem 7-6

Problem 7-7

Notes and Questions

Harmonized Tariff Schedule of the United States

Ⅳ.Customs Procedures

Ⅴ.Product Classification

A.The WTO Rules

European Communities—Customs Classification of Certain Computer Equipment

Problem 7-8

European Communities—Customs Classification of Frozen Boneless Chicken Cuts

Notes and Questions

Problem 7-9

Canada/Japan—Tariff on Import of Spruce, Pine, Fir（SPF） Dimension Lumber

Spain - Tariff Treatment of Unroasted Coffee

Notes and Questions

B.The United States

Problem 7-10

Problem 7-11

Bausch ? Lomb, Inc.v.United States

Len-Ron Manufacturing Co., Inc.v.United States

Mead Corporation v.United States

Problem 7-12

Problem 7-13

Notes and Questions

C.The European Union

Council Regulation 2658/87

E.I.DuPont deNemours, Inc.v.Commissioners of Customs and Excise

Peacock AG v.Hauptzollamt Paderborn

Notes and Questions

Ⅵ.Valuation

A.The WTO Rules

Problem 7-14

Problem 7-15

B.United States Law

Century Importers, Inc.v.United States

Luigi Bormioli Corp., Inc.v.United States

Notes and Questions

Problem 7-16

C.European Union Law

Hans Sommer GmbH v.Hauptzollamt Bremen

Notes and Questions

Ⅶ.Rules of Origin

A.WTO Standards

B.United States Law

Problem 7-17

Koru North America v.United States

SDI Technologies, Inc.v.United States

Notes and Questions

C.European Union Law

Brother International GmbH v.Hauptzollamt Giessen

Problem 7-18

Ⅷ.Customs and Free Trade Areas

Cummins Inc.v.United States

Problem 7-19

Problem 7-20

Problem 7-21

Note on Determining Origin Under NAFTA

Article 401

NAFTA: A Guide to Customs Procedures U.S.Department of Commerce Guidelines

Notes and Questions

8 Non-Tariff Trade Barriers

Ⅰ.Introduction

Ⅱ.Quotas

A.Background

Problem 8-1

B.GATT Rules on Quotas

1.Overview

2.Article ⅩⅠ: The “General Elimination” Rule

Problem 8-2

Problem 8-3

Japan —Trade in Semi-Conductors

Notes and Questions

Problem 8-4

Canada—Import Restrictions on Ice Cream and Yoghurt

Notes and Questions

3.The Administration of Quotas

European Communities—Regime for the Importation, Sale and Distribution of Bananas

Notes and Questions

Ⅲ.Agricultural Trade

Problem 8-5

Problem 8-6

Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products

Notes and Questions

Ⅳ.Technical Regulations and Product Standards

Problem 8-7

Problem 8-8

Problem 8-9

Problem 8-10

European Communities —Trade Description of Sardines

Problem 8-11

Ⅴ.State Trading Enterprises

Problem 8-12

Canada—Measures Relating to Exports of Wheat and Treatment of Imported Grain

Notes and Questions

9 General Exceptions: Trade and Civil Society

Ⅰ.Introduction

Notes and Questions

Ⅱ.Environmental Protection

Problem 9-1

Problem 9-2

Problem 9-3

United States—Import Prohibition of Certain Shrimp and Shrimp Products

United States—Import Prohibition of Certain Shrimp and Shrimp Products Recourse to Article 21.5 by Malaysia

Notes and Questions

Note on Environment and Trade

Problem 9-4

Ⅲ.Protection of Human Health and Safety

European Communities—Measures Affecting Asbestos and Asbestos-Containing Products

Note on the “Necessary” Requirement in GATT Article ⅩⅩ

Notes and Questions

Ⅳ.Food Safety: Sanitary and Phytosanitary Measures

A.Introduction

Problem 9-5

Problem 9-6

European Communities—Measures Concerning Meat and Meat Products （Hormones Case）

Notes and Questions

Note on the EC Biotech Products Case

Ⅴ.Workers' Rights

Problem 9-7

Problem 9-9

Problem 9-9

Note on Human Rights and International Trade

10 Safeguards

Ⅰ.Introduction

Ⅱ.Safeguards Under the WTO

Notes and Questions

Problem 10-1

Problem 10-2

Problem 10-3

Ⅲ.Safeguards Under U.S.Law

Corus Group PLC v.International Trade Commission

Problem 10-4

Consumers Union of the United States, Inc.v.Kissinger

Notes and Questions

Case Study One: The U.S.Auto Safeguards of 1981

Problem 10-5

Problem 10-6

Report to the President on Certain Motor Vehicles and Certain Chassis and Bodies Thereof

The U.S.-Japan Voluntary Restraint Agreement of 1981

Notes and Questions

Case Study Two: The U.S.Steel Safeguards Case of 2002

Problem 10-7

Report Submitted by President George W.Bush to the U.S.Congress （2002） Pursuant to Section 203（B）（1） of theTrade Act of 1974, as Amended

Problem 10-8

United States—Definitive Safeguard Measures on Imports of Certain Steel Products

Notes and Questions

Note on import Restrictions to Safeguard Balance of Payments

11 Developing Countries

Ⅰ.Introduction

A.Overview of Developing Countries

B.What Is a Developing Country?

C.The History of Developing Countries Within the GATT/WTO

Notes and Questions

Note on the Application of Safeguards and Quotas Concerning Textiles and Clothing

Note on Differing Views of Development

Problem 11-1

Ⅱ.The GATT and Developing Countries

Problem 11-2

Problem 11-3

Notes and Questions

Ⅲ.Developing Country Preference Systems Under the WTO

A.The Generalized System of Preferences for the Trade in Goods

1.The United States

Problem 11-4

Problem 11-5

19 U.S.C.§2461

19 U.S.C.§2462

19 U.S.C.§2463

Torrington Co.v.United States

Notes and Questions

2.The European Union

Problem 11-6

Problem 11-7

European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries

Notes and Questions

B.Special and Differential Treatment Under Other WTO Agreements

Notes and Questions

Ⅳ.Agricultural Trade Subsidies

Problem 11-8

European Communities—Export Subsidies on Sugar

Note on U.S.—Upland Cotton

Postscript: The Growing Clout of Developing Countries: Implications for the Future of the WTO

12 Unfair Trade Remedies: Anti-Dumping and Countervailing Duties

Ⅰ.Introduction

Export America

Notes and Questions

Problem 12-1

Ⅱ.Dumping and Anti-Dumping Duties

A.The Economic and Political Debate

Michael K.Young, United States Trade Law and Policy

Thomas J.Schoenbaum, Market Contestability and Reform of the Antidumping Laws

Backgrounder, The Heritage Foundation, No.261

Notes and Questions

Problem 12-2

Problem 12-3

B.The Operation of the U.S.Anti-Dumping Laws: Procedural Aspects

Michael K.Young, United States Trade Law and Policy

Note on Appeals of Anti-Dumping Cases to Binational Panels Under NAFTA

C.The Calculation of Anti-Dumping Duties

Problem 12-4

Problem 12-5

Problem 12-6

Problem 12-7

1.How Dumping Is Determined

Notes and Questions

a.Dumping Calculations

Notes and Questions

Problem 12-8

D.Injury Analysis

Problem 12-9

1.Material Injury

Sandvik AB v.United States

2.Causation

Nucor Corporation v.United States

Notes and Questions

E.International Law Discipline on Anti-Dumping Proceedings: The WTO Antidumping Agreement

1.WTO Challenges to U.S.Anti-Dumping Law: Policy Issues

Problem 12-10

United States—Anti-Dumping Act of 1916

Notes and Questions

Problem 12-11

2.Procedural Aspects of U.S.Law Under the WTO

United States —Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan

Notes and Questions

3.Dumping Determinations

United States—Measures Relating to Zeroing and Sunset Reviews

Notes and Questions

4.The Material Injury Analysis

European Communities—Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil

Notes and Questions

Ⅲ.Subsidies and Countervailing Measures

A.Introduction

B.The Economic and Political Rationales for Policies Against Subsidies

Types of Subsidies

The Economic Debate over Subsidies

Michael K.Young, United States Trade Law and Policy

Problem 12-12

Notes and Questions

C.Challenging Subsidies at the WTO: The Subsidies and Countervailing Measures Agreement

1.Defining Subsidies

2.General Framework

3.Agricultural Subsidies

4.Prohibited Subsidies

United States —Tax Treatment for “Foreign Sales Corporations”

Notes and Questions

5.Actionable Subsidies

Problem 12-13

Indonesia —Certain Measures Affecting the Automobile Industry

6.WTO Remedies for Subsidization

United States —Tax Treatment for “Foreign Sales Corporations”

Notes and Questions

D.Countervailing Duty Procedures Under U.S.Law

Michael K.Young, United States Trade Law and Policy

Problem 12-14

Problem 12-15

Problem 12-16

Notes and Questions

E.WTO Standards for Countervailing Duty Investigations

United States —Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors （DRAMS） from Korea

Problem 12-17

Notes and Questions

Note on the Privatization of State-Owned Enterprises

Note on the U.S.—Canada Softwood Lumber Case

13 Export Controls

Ⅰ.WTO Export Rules

Note on Multilateral Export Controls

Ⅱ.U.S.Export Controls

A.Introduction

B.Export Controls Under the EAA and the EAR

1.What Is Being Exported?

2.Where Is the Destination of the Export?

3.Who Will Receive the Item?

4.What Use Will Be Made of the Item?

Notes and Questions

Problem 13-1

Problem 13-2

Problem 13-3

Problem 13-4

Excerpts from U.S.Export Administration Regulations

Export Control Classification Numbers

Ⅲ.U.S.-Ⅲmposed Embargoes and Trade Restrictions on Foreign Countries

A.Introduction

Problem 13-5

B.The Cuban Embargo

Empresa Cubana Del Tabaco v.Culbro Corp

Notes and Questions

C.The Helms-Burton Act

Organization of American States: Inter -American Juridical Committee Opinion Examining the U.S.Helms-Burton Act

Opinion of the Inter-American Juridical Committee in Response to Resolution AC/Doc 3375/96 of the General Assembly of the Organization Entitled “Freedom of Trade and Investment in the Hemisphere”

Notes and Questions

Problem 13-6

Problem 13-7

Problem 13-8

Ⅳ.Anti-Boycott Regulations

Problem 13-9

United States v.Meyer

Notes and Questions

Bibliographical Note

Table of Cases

Index