Danae Azaria | ‘Trade Countermeasures in Response to Breaches of Non-WTO Obligation’

Conference

War and revolution in international trade and investment law (9:30 – 10:45)

The obligation to settle international disputes by peaceful means was supposed to supersede the use of force, not least in cases of sovereign default or injury to aliens. Still, economic adjudication has coevolved with internal and international armed conflict. Many disputes emerged from the Arab Spring, whilst Ukraine and nationals brought claims before the WTO (Russia – Traffic in Transit) and investment arbitration (Stabil v Russia). This panel discusses the past and present of war and revolution in trade and investment disputes, reflecting upon revolutionary or reactionary roles played by lawyers.

Dr. Azaria will be joining a panel on War and Revolution in International Trade and Investment Law, where she will discuss her article, “Trade Countermeasures in Response to Breaches of Non-WTO Obligations”, the abstract of which can be found below:

Trade Countermeasures in Response to Breaches of Non-WTO Obligations: Abstract

This article argues against a settled view of WTO lawyers that trade countermeasures in response to the violation of obligations outside the WTO are not permissible to WTO Members. The alleged ‘displacement’ of trade countermeasures in response to breaches of non-WTO obligations disadvantages (especially smaller) States in enforcing their rights under international law and in having a meaningful way of ‘breaking their silence’ against the erosion of fundamental rules of international law. In light of these wider implications, arguments supporting their ‘displacement’ have to be based on clear evidence. This article shows that there is no strong evidence in the WTO Agreement to this effect. It also attempts to soothe the ‘fear’ that such countermeasures may undermine the predictability of the WTO system. Trade countermeasures for breaches of extra-WTO obligations are subject to stringent conditions under CIL and to the jurisdiction of and thus judicial scrutiny by WTO adjudication, both of which minimize the space for abuse and the risk of unpredictability within the WTO.