Alexei S. Ispolinov head of international law department Moscow State University

1. Violations of WTO obligations and sanctions for not-bringing in compliance: reflections for Russia Alexei S. Ispolinov head of international law department Moscow State University

2. Implementation of the DSB decisions • Bringing the contested measure in conformity with WTO rules • Compensation • Refusal to comply -readiness to face sanctions 1

3. Sanctions in GATT Conditions for impositions Requirement of consensus for adoption of the panel report and for imposition of sanction As a result – (a) sanctions have been authorized just once (US – suspension of obligations, 1952) (b) Self –help approach by the states (especially by USA) – aggressive unilatelarism. Questions regarding validity and proportionality of the unilateral measures Practice Approach of the states 2

4. WTO: conditions for imposition of sanctions WTO – some major innovation of the dispute settlement system including sanction regime Basic features of WTO sanction regime: • Absence of collective sanctions • Absence of retrospective sanctions • Sanctions if the state failed to bring the measure in conformity in a reasonable time 3

5. WTO: conditions for imposition of sanctions • Only by complaining state • Temporary character till bringing the contested measure into conformity • Shall be equivalent to the level of violation (art. 22.4 DSU) • In case of disagreement the level of equivalence shall be determined by arbitrators 4

6. Issues of terminology Art. 22 of DSU says about “suspension of concessions and other obligations” In literature and in some DSU decisions: “sanctions” or “retaliatory measures” We will use “sanctions” 5

7. Statistics • 1995-2014 – 474 complaints • Only in 10 cases the complaining parties asked for authorization of sanctions • Only in 4disputes the complaining parties decided to impose sanctions (USA, Canada, EU) • Some countries (including Brazil, Antigua, Ecuador) refrained from imposition of sanctions 6

8. USA experience • Sanctions in all cases they got the authorization – EU-bananas and EU-hormones • Immediate imposition of 100% duties on the goods imported from the EU • List of goods – EU-bananas – leather bags Luis Vuitton (France), Pecorino cheese (Italy), cashmere sweaters and bath accessories (UK), batteries and coffee machines (Italy) • EU-hormones – delicious products (Dijon mustard, Roquefort cheese, truffles from Italy, Danish ham, chocolate, juices and jams from England) 7

9. USA experience (cont.) Decisive factors: • Lobbyist capacities of the European manufacturers of the products • Choice of the country – influence in EY decision-making • Activity in adopting of the contested measure (sort of punishment) • Less possible negative impact on the USA consumer market • Publicity • Carousel approach 8

10. EU approach For EU a main aim of sanctions is to induce compliance with WTO rulings FSC case experience (record amount – 4blnUSD): More flexible approach – Instead of 100% duties – to increase by 5%, and by 1 % per month till a level of 17% 9

11. EU approach (cont.) • Publicity • Politically motivated choice (re-election of G. Bush-Jn) • Smart approach – screaming exporter is better then exporter who is already out of the market 10

12. Brazil experience • Brazil is proud to join the club • Perspectives of the victory in US-Cotton case – full scale preparation of sanctions program • Special legislative act TRIOPS related sanctions • Confidentiality • amicable agreement with UAS – annual payment of 147,3mln USD 11

13. Equivalence: problems with definition and calculations “The level of suspension of concessions and other obligations shall be equivalent to the level of nullification and impairment’ (art. 22.4 DSU) • EC-bananas – USA – request for sanctions in amount 520 mln. , authorization for 191,4 mln. • EC-Hormones – USA request for 202 mln., received authorization – 116,8 mln. • Brazil US cotton requested 3 bln. USA – 147,3 mln in outcome • Antigua – 3 bln443 mln USA – authorization for 21 mln per year 12

14. Methods of calculation • “The equality-of-harm” approach – “an-eye-for-an-eye” Comparison of 2 situations – (a) level of trade blocked as a result of the application of contested measure and (b) counterfactual situation where no such measure exists • “The level-of-subsidy” approach – calculation based on the amount of prohibited subsidy 13

15. Equivalence of sanctions based on GATS and TRIPS • Problems with calculations and with choice of counterfactuals • Ecuador – first case, 201 mln USA TRIPS-related sanctions due to the insignificant import from the EU • Antigua case – failure to provide detailed explanations. Judicial disaster. Necessity to have an appeal instance 14

16. Summary of WTO sanctions regime Advantages: • Absence of damage compensation – further incentive to submit all disputes to DSB • Absence of retrospective sanction – incentive for further liberalization of world trade • Decrease of disparity between developed and developing counties. Having not enough specialists the developing countries tend to make more WTO violations. • Specifics of WTO – obligation regarding results, not obligation regarding behavior 15

17. Disadvantages • Current sanctions regime creates de facto escape clause – measure continue to be applied till the moment of completion of all judicial procedure and authorization of sanctions – 3-4 years (6.5 years in case US-cotton) no need to use the Special safeguard agreement • Suggestion of reform • Compensation, interim measures. Highly disputable and not realistic 16

18. Russia and WTO sanctions regime • One of the mail arguments in favor of joining WTO – availability of DSB for contest measures of another states. Another example – an idea of question in WTO the EU energy package • In case of victory – what will be our further steps in case of the EU refusal to comply? Sanctions? • In what form? Russia has a huge internal market but how to use it in case of sanctions? Russia is already a member of the Customs Union and any increase of the import duty shall be a decision of the CU institutions 17

19. Sanctions against Russia and the Customs Union • Temptation in some Russian headquarters to adopt WTO non-consistent measures and then use to the full extend specifics of WTO sanction regime as de facto escape clause (4-5 years) • complicated situation with the legal status of the Customs Union and its measures (plus the fact that Belarus and Kazakhstan are not still WTO members) Solutions or EU EU Commission proposal for new enforcement framework for international trade rules, MEMO/12/1006, 18/12/2012 18

20. What does the proposal cover? • EU trade sanctions when a country does not comply with a ruling under multilateral or bilateral dispute settlement rules 20

21. What does the proposal cover? • Retaliatory actions in case of adoption by third countries of bilateral/regional safeguard measures without satisfactory compensation 21

22. What does the proposal cover? • Suspension of trade benefits granted to a WTO Member that modifies its concessions • Towards the EU under Article XXVIII GATT 1994 and fails to provide due compensation (Ukraine, fall 2013 initiative of the Ukrainian Government aiming to modify its binding tariffs on over 300 goods agreed upon Ukraine accession) 21

23. “Russia could in return have recourse to the WTO’s formal dispute settlement proceedings to challenge the level and/or form of the EU’s retaliation, but even in case of a positive outcome of the dispute the WTO rulings would not have retroactive effect. Hence, in practice the EU’s measures may be in force as long as the CU’s safeguards are affecting the EU’s interests” 22

24. Recommendations • In principle current systems of WTO sanctions has more advantages for Russia due to the huge and very competitive internal market • But Russia’s ability to impose WTO sanctions is seriously limited by its membership in the CU • What is available? Sanctions based on TRIPS and GATS • Highly advisable solution – to adopt a special legislative act clarifying all such issues • Absence of clarifications means for Russia that the county has no teeth even willing to protect the interest of the Russian companies using WTO dispute settlement mechanism 23

25. Thanks for attention