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2006 the Philippines and the WTO_0

2006 the Philippines and the WTO_0

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Published by: Sui on Mar 23, 2009
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05/10/2014

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THE PHILIPPINES AND THE WTO: SURVEY OFCURRENT PRACTICES WITH EMPHASIS ONANTI-DUMPING, COUNTERVAILING DUTIESAND SAFEGUARD MEASURES
 H. Harry L. Roque
 
A
BSTRACT
 
This paper will present a survey of current Philippine practicesin the WTO and will evaluate the country’s level of compliancewith its treaty obligations under the WTO. It will also examinesome specific WTO issues affecting the country with the endview of  providing a theoretical framework of how to approach, if not resolve, these issues.
K
EYWORDS
:
a
nti-dumping; countervailing duties; safeguard measures;Philippines
 
 
Of the Philippine Bar, BA (Mich), LL.B. (UP), LL.M (LSE), Director, Institute of InternationalLegal Studies and Assistant Professor of Law, University of the Philippines Law Center; Partner,Roque and Butuyan Law Offices, Makati, Metro-Manila, Philippines.
 
 
230 AJWH [V
OL
. 1:229
I. C
ONSTITUTIONAL
F
RAMEWORK
 
The Philippines is unique among World Trade Organization (WTO)Members in that it is probably the only jurisdiction worldwide where thelocal Supreme Court has had occasion to pronounce on the constitutionalityof the country’s entry into the WTO. In the case of 
Tanada v. Angara
,
1
theprimary issues adjudicated upon by the Supreme Court were one, whetheror not the Chief Executive’s decision to ratify the WTO, as well as theSenate’s concurrence with the Executive decision to ratify, violated theFilipino first policy enshrined in the Philippine Constitution and thus,was tantamount to a grave abuse of discretion; and two, whether specificprovisions of the WTO resulted in a derogation of powers exclusivelygranted to both the Supreme Court of the Philippines and the Congress of the Philippines.Here, the contention of the Petitioners, nationalists all, was that theWTO provisions, such as the most-favored-nation (MFN) clause, thenational treatment principle and the Agreement on Trade-RelatedInvestment Measures (TRIMS Agreement) provisions violated Articles IIand XII of the 1987 Constitution.Article II of the 1987 Constitution reads:Sec. 19. The State shall develop a self reliant and independentnational economy effectively controlled by Filipinos.Article XII in turn reads:Sec. 10. The Congress shall enact measures that will encouragethe formation and operation of enterprises whose capital isowned by Filipinos. In the grant of rights, privileges andconcessions covering the national economy and patrimony, theState shall give preference to qualified Filipinos.. . . .Sec. 12. The State shall promote the preferential use of Filipinolabor, domestic materials, and locally produced goods, andadopt measures that make them competitive.In ruling that the WTO was not in violation of these provisions, theCourt explained that in the first place, both Articles II and XII of theConstitution are mere declarations of State Policy and are not
1
Tanada v. Angara, 272 SCRA 18 (May 2, 1997). (Phil.)
 
2006] P
HILIPPINE
P
RACTICE ON
I
MPORT
R
EMEDIES
231
self-executing provisions, the disregard of which cannot give rise to a causeof action in court. Accordingly, such provisions are not enforcingconstitutional rights, but mere guidelines for legislation.
2
 Having said this, the Court nonetheless added that by reading theConstitution in its entirety, there is a bias in favor of Filipino goods,services, labor, and enterprises, but only in the grant of rights, privileges,and concessions covering national economy and patrimony. It does not,said the Court, provide for an isolationist policy.
3
The Court went on toadd that in fact, the Constitution “recognizes the need for businessexchange with the rest of the world on the basis of equality and reciprocityand frowns only on foreign competition that is unfair.”
4
It further ruled thatcontrary to the claims of the Petitioners, the WTOwill not wipe out localindustries and enterprises, as in fact the WTO has built in protection againstunfair trade practices, such as provision on anti-dumping, countervailingand safeguard measures against import surges, which developing countriessuch as the Philippines may avail of.
5
 It added that contrary to the arguments of the Petitioners, the MFNclause, the national treatment principle, and the trade withoutdiscrimination principle cannot be struck down as unconstitutional as theyare rules of equality and reciprocity that apply to all WTO Members. TheCourt stated:Aside from envisioning a trade policy based on ‘equality andreciprocity,’ the fundamental law encourages industries that arecompetitive in both domestic and foreign markets, therebydemonstrating a clear policy against sheltered domestic tradeenvironment, but one in favor of the gradual development of robust industries that can compete with the best in foreignmarkets.
6
 On the issue of derogation of sovereignty, the Court stated thatsovereignty, albeit absolute, may be subject to restrictions and limitationsvoluntarily agreed upon by the country. In the words of the Court:“Unquestionably,the Constitution did not envision a hermit type isolationfrom the rest of the world.”
7
 It then justified that the binding nature of the WTO on the basis of theprinciple of 
 pacta sunt servanda
, which, as a recognized principle of 
2
Id 
. at 54.
3
Id.
at 59.
4
 
 Id.
 
5
 
 Id.
at 61.
6
 
 Id.
at 63.
7
 
Tanada
, 272 SCRA, at 66.

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