دانلود کتاب Voluntary Export Restraints in WTO and EU Law: Consumers, Trade Regulation and Competition Policy (Studies in Global Economic Law / Studien zum ... / Etudes en droit économique mondial)

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Table of Contents
Preface XIII
Abbreviations XV
Treaty of Lisbon: A Note on Terminology XIX
Bibliography XXIII
CHAPTER I Voluntary Export Restraints
1 Introduction 1
1.1 A Word on the Concepts and the Notion of VERs 3
1.2 Some Factual and Legal Observations 6
1.3 Outline of the Thesis 10
2 The Political Economy of Voluntary Export Restraints 14
2.1 The Economy of Voluntary Export Restraints 15
2.1.1 The Impact of VERs on Price Levels 16
2.1.2 The Creation of Rent-Seeking Activities 19
2.1.3 The Effect of VERs on Different Import Sources 20
2.1.4 The Impact of VERs on Domestic Output 22
2.1.5 Summary 23
2.2 The Politics of Voluntary Export Restraints 24
2.2.1 The Political Advantages of VERs for the Government and the Competitors of the Importing Country 24
2.2.2 The Political Advantages for the Government and the Competitors in the Exporting Country 31
3 The History of Voluntary Export Restraints 34
3.1 The Emergence of VERs in the Trade Relations of the EC – The Example of Japan 37
3.1.1 Japan’s Accession to the GATT 38
3.1.2 Recourse to GATT Article XXXV 40
3.1.3 The Replacement of the EC Member State Representations by the Community within the GATT 44
3.2 Common Commercial Policy versus National Measures 46
3.2.1 The Japanese VERs on Motor Cars 46
3.2.2 The EC – Japan VER on Video Cassette Recorders (VCRs) 52
3.2.3 The EC’s Controversial Perception of VERs 56
4 The Popularity of Voluntary Export Restraints and the Rarity of Case Law 62
4.1 Understanding the Functioning and Popularity of VERs 62
4.2 The Rarity of Judicial Decisions on VERs 67
4.2.1 The EC’s Challenge of the U.S.-Japan Arrangement on Semi-Conductors 71
a) The Meaning of “Measures” Covered by GATT Article XI 74
b) The Degree of Government Involvement Necessary to Be Caught under GATT Article XI 76
c) Brief Analysis of the Conclusions of the Panel 79
4.2.2 The U.S. Consumers Union’s Challenge of the VERs on Steel 82
a) The Affirmative Findings of the Court of Appeals 83
b) The Dissenting Opinion of Circuit Judge Leventhal 87
4.3 Preliminary Conclusion 90
CHAPTER II The Relationship of WTO Law and EU Law
1 The Status of International Agreements in the EU Legal Order 93
1.1 International Agreements as “Integral Part” of EU Law 94
1.2 The Doctrine of Direct Effect 95
1.3 The Classification of International Agreementsin the Hierarchy of Norms 102
1.4 The Judicial Application of International Agreements 103
2 The Domestic Legal Status of the WTO/GATT 107
2.1 The Approach of the EC Institutions in the Case of the WTO/GATT 107
2.2 The Reluctance of the Court of Justice to Grant Direct Effect to WTO Rules 110
2.2.1 Flexibility – An Argument for any Occasion? 111
2.2.2 Reciprocity – The Imperfection of Mutual Commitments 115
2.2.3 Dispute Settlement – Negotiation rather than Adjudication? 118
2.3 The Situation after the Entry into Force of the WTO Agreement and its Annexes 119
2.3.1 Cases on the Effect of WTO Provisions 119
2.3.2 Cases on the Effect of WTO Dispute Settlement Body Decisions 131
3 Invocability of Directly Effective WTO Provisions 139
3.1 Locus Standi under Article 263 TFEU (ex Article 230 EC Treaty) 141
3.2 Reference for a Preliminary Ruling under Article 267 TFEU (ex Article 234 EC Treaty) 147
3.3 A Short Comment on Liability 149
4 Preliminary Conclusion 154
CHAPTER IIIThe Boundaries of Challenging Voluntary Export Restraints within the EU Legal Order
1 Reliance on the Agreement on Safeguards before the Courts 161
1.1 The Implementation of the Agreement on Safeguards in the EU Legal Order 162
1.1.1 Relationship between the Agreement on Safeguards and GATT Article XIX 165
1.1.2 The Regional Application of Safeguard Measures 173
1.1.3 The Conduct of an Investigation 182
1.1.4 The Legal Prerequisites of Safeguard Measures 188
a) Increased Quantities and Conditions of Import 188
b) The Determination of “Serious Injury” or Threat thereof 190
c) The Causal Link between Imports and Injury 194
d) The Notion of “Likeor Directly Competitive Products” 197
aa) The “Two-Step Approach” versus the “Aim and Effects Test”in the Differentiation of Products 199
bb) The Determination of “Like Products” 204
cc) The Determination of “Directly Competitive” Products 209
dd) Lessons for Safeguard Investigations 213
1.2 Evaluation under the “Implementation Principle” 220
1.2.1 Clear Reference to the Agreement on Safeguards? 221
1.2.2 Intention to Implement the Agreement on Safeguards? 223
1.3 Preliminary Conclusion 226
2 Challenging Practices Inconsistent with the Agreement on Safeguards under the Trade Barriers Regulation (TBR) 227
2.1 The Position of Private Parties under the Trade Barriers Regulation 231
2.2 The Court of First Instance Ruling on the Trade Barriers Regulation in FICF et al. v. Commissio 236
2.2.1 Findings on Substantive Matters 238
a) The Definition of “Obstacle to Trade” 238
b) The Interpretation of “Adverse Trade Effects” 240
c) The Requirement of “Community Interests” 241
2.2.2 Findings on Procedural Matters 244
a) The Right to a Fair Hearing 244
b) The Non-Binding Nature of Time-Limits 245
2.3 Preliminary Conclusion 246
3 Applicability of EU Competition Law to VERs 248
3.1 The Commission’s Approach to Privately Negotiated VERs and Other Restrictions on Trade 248
3.2 The Approach of the European Courts Regarding Immunity from Competition Liability due to Government Involvement 254
3.3 Preliminary Conclusion 270
CHAPTER IV The Boundaries of Challenging Voluntary Export Restraints within the WTO Dispute Settlement System
1 Government Involvement 275
1.1 The Concept of “Governmental” Measure 275
1.2 The Degree of Government Involvement Required for there to be “Encouragement” or “Support” under Article 11:3 Agreement on Safeguards 277
1.3 The Application of Domestic Competition Laws versus “Effects on Competition”-Test 280
1.3.1 The Nature and Effect of Export Cartels 284
1.3.2 The Limitations of Positive Comity 286
1.3.3 Advocating an “Effects on Competition”-Test under the Agreement on Safeguards 292
2 The Application of “Non-violation” Complaints to Competition Law Matters 296
2.1 “Measure” as Practice Tolerated or Required by Domestic Regulations 298
2.2 Different Terms – Similar Meanings 303
3 Preliminary Conclusion 304
CHAPTER V Summing Up the “Non-Complaint” Situationof Voluntary Export Restraints
1 VERs: Flexible Enough to Bend (not Break) the Law? 308
1.1 The “No-Fault” Insurance Protection 309
1.2 Security and Predictability for All Economic Operators 310
2 The (In)Availability of Legal Remedies to Private Economic Operators 311
2.1 No Direct Access of Private Parties to the WTO Dispute Settlement System 312
2.2 Incomplete Access of Private Parties to Domestic and/or Community Courts 313
2.2.1 Limited Invocability of WTO Provisions and DSB Reports 315
2.2.2 Denial of Compensation for Damages 317
2.2.3 Insufficient Reach of EU Competition Law 319
3 Targeting the “Non-Complaint” Situation by Introducing an “Effects on Competition”-Test 321