Posts Tagged World Trade Organisation
WTO examiners: at ease! Canadian Supreme Court holds in R. v. Comeau (New Brunswick restrictions on alcohol trade).
Fellow faculty about to examine students on the Law of the World Trade Organisation, have their exam sorted (especially if it is an oral exam). In 2018 SCC 15 R v Comeau the Canadian Supreme Court held last week. At issue is New Brunswick’s restrictive regime on the import and sale of alcoholic beverages. Greg Tereposky and Daniel Hohnstein have background to the case.
Despite the Province’s regime having clear trade impact, the SC held that it was not illegal under Canada’s internal free trade rules – with occasional reference to GATT and WTO. For comparative and exam purposes, the interesting angle is clear: has the Supreme Court adopted the kind of aims and effects test which the WTO is no fan of?
Copy of the judgment. 15 mins prep. And Bob’s your (oral exam) uncle.
(Handbook of) The law of the World Trade Organisation, forthcoming at OUP with Demeester, Coppens, Wouters and Van Calster.
Belgium’s origin labelling of products from Israeli – occupied territories. A lot of beating round the bush.
Update 14 November 2019 See for the European legal context the CJEU earlier in this week in C-363/18 Organisation juive européenne holding that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance.
The Belgian Government has published its ‘notice to retailers concerning origin labelling of products from Israeli occupied territories’. The initiative got a lot of press, in Belgium at least, the past few days. It was announced as the culmination of lengthy preparation in light of the existing difficulties in particular with the EU-Israel and EU-Palestine association agreements. Good summary of those difficulties is provided here by DEFRA. (Compiled in 2009 but the issues have remained more or less the same. Note that the Belgian notice refers as far as the exiting origin obligations are concerned, essentially revisits the DEFRA compilation).
Generally, initiatives like these are problematic at three levels.
Firstly, purely legally, specifically international trade law. Countries introducing these types of regimes (including the UK, Denmark, and now also Belgium) allege that all that is envisaged is consumer information, without any signal or pressure from government to boycott said products. That is cosmetic at best. One cannot seriously argue that given the current context, the ‘informative notice’ is not related to a political signal by the Belgian Government. Any consequences of the notice therefore in my view without doubt are sponsored by the Government and hence fall under WTO discipline. (Note that Palestine is not a WTO Member but Israel is).
That same context feeds the argument that the introduction of a label of origin for the occupied Palestine territories serves to make all Israeli produce suspicious in the eyes of the Belgian consumer. That is a highly relevant angle for international trade law.
Secondly, the practical angle. A label of origin requirement is not new. The very existence of different agreements between Palestine, Israel and the EU requires it. Yet controlling those labels has proved impossible so far. Suggestions of lengthy preparation made me curious about the regime the Belgian Government would have devised. The answer is simply that is has devised none. The notice simply says
In order to clarify that these products originate from an Israeli settlement, the following labels are recommended: – ‘Product from the Golan Heights (Israeli settlement)’ – ‘Product from the West Bank (Israeli settlement)’. For products from the West Bank that do not originate from settlements, the label ‘product from the West Bank (Palestinian product)’ is recommended.
There are no indications of who is supposed to attach the labels (‘the retail industry’), who will inspect them, what rules of origin percentages apply. etc.
I am not an economist and hence not in a position to advice whether boycotts such as these actually reach those against whom they are intended. (Which is the third level of problems). Neither am I a public international lawyer who sees clear in the myriad of territorial and other claims which sadly dog Israel-Palestine relations. I am however a litigator and in that capacity I have always preferred doing things with blazing guns once it comes down to boycotts, consumer driven or not: state your case and do not beat around the bush. This notice is disappointing in view of the noise created around it in recent days and it pussyfoots around the real Government intention.
Denmark has adopted its regime for notification preparations and products containing nanomaterials. (Belgium ‘s regime as far as I am aware has still not been finally adopted – it is not the kind of measure which its care-taker government (coalition negotiations are underway) can justifiably adopt). The final text (Danish only) does differ from the text notified under the EU’s transparency regime, following comments by the EC and by other Member States.
The Danish text (which entered into force last Wednesday, 18 June) differs from the proposed Belgian regime: it targets consumer goods, not professional goods; it does not mutually recognise notification done in other Member States…The Belgian regime in turn differs from the French, and Norwegian (not an EU Member State but EFTA) scheme etc. Harmonisation at the European level is becoming ever more urgent: impact assessment at that level is underway and a proposal expected for the autumn. This will then presumably gazump any pre-existing national regimes.
I reported earlier on the delay incurred by the Belgian nano register. Following objections under the EU’s transparency Directive, the Belgian register stood still. The Belgian Government is now tinkering with the proposal, having reportedly adopted a new draft which is being sent to various consultative bodies.
The new draft, a little bird tells me, adds additinal requirements in the light of occupation health and safety requirements; introduces 1 January 2016 as the deadline for registration of nanomaterials already on the market and 1 January 2017 for relevant mixtures; postpones until later the cut-off date for objects and complex preparations containing nanomaterials; and cancels the exemption for cosmetics containing nanomaterials.
Strangely, for a move designed to increase transparency, the new draft itself is kept under wraps for the time being.
Many thanks to Gideon Kracov for pointing this out to me: the proposed Responsible Electronics Recycling Act (a private member’s Bill) would install an EU-type regime on the export of electric and electronic waste outside of the US. The US have signed but not ratified the Basel Convention : RERA would amount to implementation of the Convention in practice. The Bill also recognises the relevance of recovering the many rare earth materials contained in WEEE.
Here’s the blurb (the official summary of the Bill, in fact):
Introduced in House (07/23/2013)
Responsible Electronics Recycling Act – Amends the Solid Waste Disposal Act to: (1) prohibit the export of restricted electronic waste to countries that are not members of the Organization for Economic Cooperation and Development (OECD) or the European Union (EU), or Liechtenstein; (2) require the Administrator of the Environmental Protection Agency (EPA) to develop and promulgate procedures for identifying certain electronic equipment as well as additional restricted toxic materials contained in such equipment which poses a potential hazard to human health or the environment; and (3) establish criminal penalties for knowingly exporting restricted electronic waste in violation of this Act. Allows certain exceptions to such export ban.
Defines “restricted electronic waste” to include electronic equipment (excluding parts of a motor vehicle), such as computers, televisions, printers, copiers, video game systems, telephones, and similar used electronic products, that contain cathode ray tubes, batteries, switches, and other parts containing lead, cadmium, mercury, organic solvents, hexavalent chromium, beryllium, or other toxic ingredients.
Requires persons who handle restricted electronic wastes to permit appropriate EPA and state officials access to such wastes upon request.
Directs the Secretary of Energy to establish a competitive research application program to provide grants for research in the recovering and recycling of critical minerals and rare earth elements found in electronic devices.