POST-CLASS ACTIVITIES WEEK 3

 Question1: To mitigate the damage to Newland’s LED display producers

and employment in this industry, it is important to act quickly against
Richland’s import quota. Newland’s Minister of Foreign Affairs
therefore instructs Newland’s Permanent Representative to the WTO,
Ambassador Rita Montesdeoca de Murillo, to request the establishment of
a panel at the next meeting of the DSB. Does Newland act in accordance
with the DSU by requesting the establishment of a panel in this way? if
not, could the DSB refuse to establish the panel?

Newland doesn't act in accordance with the DSU by requesting the establishment of a
panel in this way.

Following the methods of WTO dispute settlement, consultations must always precede
resort to adjudication in order to be cheaper and more satisfactory for the long-term trade
relations. Specifically, Newland at the outset must request consultations to Richland.
Consultation is conducted confidentially (not publicly) and does not cause damage to the
Parties’ rights. The consulted party must respond within 10 days and consultations must be
conducted within 30 days of accepting the request. And unless their consultations reach an
agreement to resolve the dispute, Newland can request DSB to establish a panel.

 Question 2: Richland’s Permanent Representative to the WTO,

Ambassador Dr. Heinrich von Schiller, reportedly receives instructions
from his government to block or if that is possible, to delay the
establishment and composition of a panel as much as possible. Can he
refuse to accept the jurisdiction of the WTO to settle this dispute and
suggest that Richland and Newland take the dispute to the International
Court of Justice?

He can't refuse to accept the jurisdiction of the WTO to settle this dispute. According to
the jurisdiction of the WTO. Dispute settlement system: A complaining Member is obliged
to bring any dispute arising under the cover agreements to the WTO; and A responding
Member has no choice but to accept it.

The suggestion that Richland and Newland take the dispute to the International Court of
Justice can't be accepted. Because the dispute in the period of consultations is carried out by
DSU, so if the consultations fail, DSU will be responsible for establishing the panel. And
International Court of Justice just can give some advices on solving this as the request of
DSU.

 Question 3: The Government of Richland announces that it will insist

that the panel includes five members, of which at least one is a national
of Richland and none are nationals of developing country Members.
Among the five panelists, it wants two economics and one engineer. None
of the panelists should be former or current Geneva diplomat. The
instructions of the Government of Richland are not to agree to a panel
the composition of which does not meet these ‘requirements’. The
Government of Newland cannot agree to Richland’s ‘requirements’ and
instructs its Permanent Representative to expedite the process of
composition the panel. What can the Permanent Representative of
Newland do?

In order to determine what the Newland Permanent Representative needs to do next, we

will analyze in detail the request made by the Richland Government. Specifically:

First, The Government of Richland insists that the panel includes five members and this
is not accepted by the Newland Government. According to Article 8.5 of the DSU, panels
are composed of three persons unless the parties to the dispute agree, within ten days from
the establishment of the panel, to a panel composed of five panelists. 1

1
DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER 6 “The process — Stages in a typical WTO
dispute settlement case”, World Trade Organization,
<https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s3p2_e.htm > truy cập ngày
5/10/2020.
 Second, citizens of a party or a third party to a dispute may not serve as panelists
without the agreement of the parties (Article 8.3 of the DSU)2. However, the Government of
Richland wants at least one is a national of Richland in the panel members.

Third, Article 8.10 of the DSU provides that when a dispute is between a developing
country Member and a developed country Member the panel must, upon request by the
developing country Member, include at least one panelist from a developing country
Member (but not citizens of parties to dispute)3. However, once again, the Richland
Government demands that none of the panel members are nationals of developing country
Members.

Finally, several other requirements for panelists are referred to in Article 8.6 of the
DSU such that they must be selected by the DSB on the basis of a list of experts presented
by the WTO Secretariat; and they must meet certain requirements in terms of expertise and
independence (Articles 8.1 and 8.2 of the DSU)4. Therefore, it is unilaterally determined by
the Richland government that “Among the five panelists, it wants two economics and one
engineer. None of the panelists should be former or current Geneva diplomat.”, this is not in
accordance with the rules.

From the issues analyzed, it can be concluded that the requirements of the Richland
government to the process of composition the panel were in violation of the panel
establishment rules set forth in the DSU. As a result, the Newland Standing Council not
only reserves the right to disapprove these requests, but can also counteract the Richland
Government and take the initiative in the formation of a panel.

 Question 4: Poorland, a neighbour of Newland and a WTO Member,

would like to be a third party in this dispute. Is it possible? Can Richland
prevent Poorland from becoming a third party in this dispute?

Fact: ClearScreen Inc. of Compacity, Richland, is the world’s largest producer and
exporter of LED displays. In recent years, however, ClearScreen has encountered ever more

2
tlđd (6).
3
tlđd (6).
4
tlđd (6).
competition from LED display producers from Newland. To protect ClearScreen and other
Richland LED display producers from import competition, the Government of Richland
decided last month to limit the importation of LED displays to 1 million units per year. The
Association of Newland Consumer Electronics Manufacturers (ANCEM) is very concerned
about Richland’s import quota on LED displays. Poorland, a neighbor of Newland and a
WTO Member,

Issues: would like to be a third party in this dispute. Is it possible? Can Richland
prevent Poorland from becoming a third party in this dispute?

Rule: DSU

Article 1: 1. The rules and procedures of this Understanding shall apply to disputes brought
pursuant to the consultation and dispute settlement provisions of the agreements listed in
Appendix 1 to this Understanding (referred to in this Understanding as the “covered
agreements”). The rules and procedures of this Understanding shall also apply to
consultations and the settlement of disputes between Members concerning their rights and
obligations under the provisions of the Agreement Establishing the World Trade
Organization (referred to in this Understanding as the “WTO Agreement”) and of this
Understanding taken in isolation or in combination with any other covered agreement.

Article 10: Third Parties

1. The interests of the parties to a dispute and those of other Members under a covered
agreement at issue in the dispute shall be fully taken into account during the panel process.

2. Any Member having a substantial interest in a matter before a panel and having notified
its interest to the DSB (referred to in this Understanding as a “third party”) shall have an
opportunity to be heard by the panel and to make written submissions to the panel. These
submissions shall also be given to the parties to the dispute and shall be reflected in the
panel report.

3. Third parties shall receive the submissions of the parties to the dispute to the first meeting
of the panel.
4. If a third party considers that a measure already the subject of a panel proceeding nullifies
or impairs benefits accruing to it under any covered agreement, that Member may have
recourse to normal dispute settlement procedures under this Understanding. Such a dispute
shall be referred to the original panel wherever possible.

(The DSU)

Application: Article 1.1 of the DSU clearly states that representatives who are members
of the WTO organization have the right to participate in disputes. Because Poorland is a
member of the WTO organization, that country is entitled to participate in a dispute between
Richland and Newland by exercising its third party rights and obligations as provided for in
Article 10 of the DSU. Newland has no right to prevent Poorland from becoming a third
party to the dispute.

(Giáo trình Luật thương mại quốc tế - phần 1, NXB Hồng Đức)

Conclusion: Because Poorland meets the DSU’s conditions, it could become a third
party to the dispute and Newland cannot prevent that.

 Question 5: In its interim report, the panel finds in favor of Newland and
recommends that the DSB requests that Richland bring the measure at
issue in this dispute into conformity with its obligations under the GATT
1994. The panel suggests that this can best be achieved by prompt
removal of the quota. Richland’s Minister of Trade denounces the panel’s
ruling as a legal travesty and announces that Richland will appeal as
soon as possible. Is Richland’s Minister of Trade allowed to make such a
statement? When and how can Richland appeal the panel report?
Fact: ClearScreen Inc. of Compacity, Richland, is the world’s largest producer and
exporter of LED displays. In recent years, however, ClearScreen has encountered ever more
competition from LED display producers from Newland. To protect ClearScreen and other
Richland LED display producers from import competition, the Government of Richland
decided last month to limit the importation of LED displays to 1 million units per year. The
Association of Newland Consumer Electronics Manufacturers (ANCEM) is very concerned
about Richland’s import quota on LED displays. In its interim report, the panel finds in
favor of Newland and recommends that the DSB requests that Richland bring the measure at
issue in this dispute into conformity with its obligations under the GATT 1994. The panel
suggests that this can best be achieved by prompt removal of the quota. Richland’s Minister
of Trade denounces the panel’s ruling as a legal travesty and announces that Richland will
appeal as soon as possible.
Issue: Is Richland’s Minister of Trade allowed to make such a statement? When and
how can Richland appeal the panel report?
Rule: The DSU

Article 17:

Appellate Review

Standing Appellate Body

7. The Appellate Body shall be provided with appropriate administrative and legal support
as it requires.

Article 16. Adoption of Panel Reports

1. In order to provide sufficient time for the Members to consider panel reports, the reports
shall not be considered for adoption by the DSB until 20 days after the date they have been
circulated to the Members.

2. Members having objections to a panel report shall give written reasons to explain their
objections for circulation at least 10 days prior to the DSB meeting at which the panel report
will be considered.

3. The parties to a dispute shall have the right to participate fully in the consideration of the
panel report by the DSB, and their views shall be fully recorded.

4. Within 60 days after the date of circulation of a panel report to the Members, the report
shall be adopted at a DSB meeting (7) unless a party to the dispute formally notifies the
DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. If a
party has notified its decision to appeal, the report by the panel shall not be considered for
adoption by the DSB until after completion of the appeal. This adoption procedure is
without prejudice to the right of Members to express their views on a panel report.

Article 21

3. At a DSB meeting held within 30 days (11) after the date of adoption of the panel or
Appellate Body report, the Member concerned shall inform the DSB of its intentions in
respect of implementation of the recommendations and rulings of the DSB. If it is
impracticable to comply immediately with the recommendations and rulings, the Member
concerned shall have a reasonable period of time in which to do so. The reasonable period
of time shall be:

(a) the period of time proposed by the Member concerned, provided that such period is
approved by the DSB; or, in the absence of such approval,

(b) a period of time mutually agreed by the parties to the dispute within 45 days after the
date of adoption of the recommendations and rulings; or, in the absence of such agreement,

(c) a period of time determined through binding arbitration within 90 days after the date of
adoption of the recommendations and rulings (12). In such arbitration, a guideline for the
arbitrator (13) should be that the reasonable period of time to implement panel or Appellate
Body recommendations should not exceed 15 months from the date of adoption of a panel
or Appellate Body report. However, that time may be shorter or longer, depending upon the
particular circumstances.

(The DSU; Working procedures for appellate review)

Application: According to Article 17, paragraph 7 provides that the disputing parties
have the right to appeal, so Richland’s Minister of Trade has the right to appeal against the
report of the Appeals panel.

Procedures for conducting Appeals

According to Article 16, Subject to article 16, paragraph 2, within 10 days of the filing of
the notice of appeal, the appellant shall submit a written document detailing the legal
justifications explaining why the panel. there is a legal error, and where appropriate, the
adjudication of the appellant party wants to be made by the Appellate Body in connection
with the controversial Panel's opinions. This document must also be sent to the disputing
party, the participant, the third party and the other participant.

According to Article 21, paragraph 3(b), “a period of time mutually agreed by the parties to
the dispute within 45 days after the date of adoption of the recommendations and rulings; or,
in the absence of such agreement”

Approximately 30-45 days after notice of the appeal, the Trial Panel The Appellate Body,
which is assigned to consider the appeal, will hold a non-public verbal hearing. At this
hearing, the Appellate Body questions the parties and third parties

(The DSU; Working procedures for appellate review; thongtinphapluatdansu.edu.vn)

Conclusion: In disapproval of the panel report, Richland’s Minister of Trade can

initiate an appeal to the DSB for appeal. To be appealed, Richland’s Minister of Trade must
take the steps specified by the DSU law.

 Question 6: The Appellate Body upholds the panel report. After the DSB
adopts the Appellate Body report and the panel report as upheld,
Richland announces that it will comply with the DSB’s recommendations
and rulings but that it is unable to do so immediately. Newland contends
that it is possible to withdraw the quota promptly. What can Newland do
next?

With the DSB's adoption of the panel and Appellate Body reports, the DSB will then
issue a recommendation and ruling to the losing party to comply with WTO law or to find a
satisfactory adjustment to the side. (Article 21.3 of the DSU)

The "loser" Member's first obligation (in particular Newland) informs the DSB at the
meeting of the DSU's intention to implement the recommendations and rulings within 30
days of adoption of the reports. The implementation member has a reasonable period of time
to achieve such compliance. Therefore, a reasonable period of time to comply with the
recommendations and rulings was not unconditionally available. Since Richland stated that
it was unable to immediately comply with the DSB's resolutions and recommendations, a
reasonable period of time was needed to do so.
  Question 7: After the expiry of the reasonable period of time for the
implementation (determined at five months), Richland claims that it has
implemented the recommendations and rulings of the panel. Newland is
baffled by this claim since the import quota is still in force. Can Newland
take retaliatory measures?

Within 20 days after the expiration of a reasonable period and the parties have not yet
reached a satisfactory compensation, Newland may ask the DSB to allow the application of
trade sanctions against Richland that have not implemented. Retaliation is the ultimate and
most serious consequence that a non-compliance Member faces in the WTO dispute
settlement system (Article 3.7 of the DSU). Although retaliation requires prior approval
from the DSB, countermeasures are selectively applied by one Member against another.

Specifically, the import quota is still in effect, but Richland claims to have implemented
the panel's recommendations and rulings. The general rule is that Newland should first seek
to suspend obligations in the same sector that have discovered a violation or nullification or
impairment.

Suspension shall be canceled when the Member concerned has fully complied with the
recommendations and rulings of the DSB. The degree of suspension of the obligations
authorized by the DSB shall be "equivalent to" the degree of nullity or impairment (Article
22.4 of the DSU). This means that the complainant's retaliation may not exceed the extent of
harm caused by the respondent.

(https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s1p1_e.htm#:~:text
=There%20are%20three%20main%20stages,by%20the%20losing%20party%20to)
 PRE-CLASS PREPARATION WEEK 4&5
 Question 1: What is market access? What kind of measures can prevent or
limit market access?

Market access refers to the ability of a company or country to sell goods and services
across borders. Market access can be used to refer to domestic trade as well as international
trade. Market access is not the same as free trade. The ability to sell in a market is often
accompanied by tariffs, duties, or even quotas, whereas free trade implies that goods and
services flow across borders without any extra costs imposed by governments. Even so,
market access is seen as an early step toward deepening trade ties. Market access is often
negotiated between countries for their mutual benefit, but it may not necessarily result in
freer trade.5

There are two kinds of measures can prevent or limit market access: border measures
and internal measures.

 Border measures: Tariffs (Customs duties); Quantitative restrictions (Quotas); other

duties and financial charges.
 Internal measures (non-tariff measures): Customs procedures; Technical barriers to
trade; Sanitary and Phyto-Sanitary measures; Environmental protection.

 Question 2: How does the GATT 1994 regulate tariffs? Illustrate the WTO
principles regarding tariffs reduction?

With regard to the applicable rules, the GATT 1994 regulates the rules on tariffs and
tariff concessions, the rules on quantitative restrictions, the rules on other duties and
financial charges, the rules on other tariff barriers, and finally, the rules on publication and
administration of trade regulations. In particular, Article XXVIII bis of the GATT 1994
encourages and calls upon WTO Members to negotiate the reduction of tariffs:

5
WILL KENTON, “Market Access” (Website Investopedia, 12/3/2020)
<https://www.investopedia.com/terms/m/market-access.asp > truy cập ngày 5/10/2020.
 1. … negotiations on a reciprocal and mutually advantageous basis, directed to the
substantial reduction of the general level of tariffs and other charges on imports
and exports and in particular to the reduction of such high tariffs as discourage
the importation even of minimum quantities, and conducted with due regard to
the objectives of this Agreement and the varying needs of individual Members.
2. (a) Negotiations under this Article may be carried out on a selective product-
by-product basis or by the application of such multilateral procedures as may be
accepted by the contracting parties concerned.
3. (b) … recognize that in general the success of multilateral negotiations would
depend on the participation of all Members which conduct a substantial
proportion of their external trade with one another.
4. Negotiations shall be conducted on a basis which affords adequate opportunity to
take into account:
(a) the needs of individual [Members] and individual industries;
(b) the needs of [developing country Members] for a more flexible use of tariff
protection to assist their economic development and the special needs of these
countries to maintain tariffs for revenue purposes; and
(c) all other relevant circumstances, including the fiscal, developmental,
strategic and other needs of the contracting parties concerned. 6

Basic Rules Governing Tariff Negotiations:

- Article XXVIII bis of GATT 1994: the principle of reciprocity and mutual advantage
 When a member request another member to reduce its duties on certain
products, it must be ready to reduce its own duties;
 This does not apply to negotiations between developed and developing
country Members (Article XXXVI:8 of GATT 1994, Enabling Clause).
- Article I:1 of GATT 1994: Most-Favored-Nation treatment (MFN)
 Any tariff reduction must be granted to all other members, immediately and
unconditionally;

6
Article XXVIII bis of the GATT 1994 about Tariff Negotiations.
  This principle also grants exceptions for Regional Economic Integration
(Article XXIV of GATT 1994) and for developing country Members
(Enabling Clause).
 Examples:
1. If the United States reduces tariff rates from 10% to 7% for chocolates from the
EU, this new rate should apply to other WTO members immediately and
unconditionally. The US cannot ask for reciprocal treatment in order to extend the
tariff reduction to WTO Members other than the EU. The reduction must be
unconditional.7
2. If Russia eases the procedure for granting import licenses to Azerbaijani goods (a
country that is not yet WTO member), the simplifications should be applied to
goods originating in all WTO members immediately.8

 Question 3: What is a Schedule of Concessions? What is the relationship

between a Schedule of Concessions and GATT 1994? What was Viet Nam’s
market access commitment regarding smart phone?

One of the main objectives of the GATT 1994 is to reduce tariffs. As seen above, the
result of tariff negotiations is that WTO Members commit themselves to a ceiling on the
level of customs duties that can be applied on certain products. In doing so, WTO Members
“bind” tariffs for these products. The bound tariffs constitute “tariff concessions”. This is
done in the so-called “Schedules of Concessions on Goods”.9

Schedules of Concessions, often referred to as “goods schedules”, are legal instruments

that form an integral part of the GATT 1994 (Article II:7) and the WTO Agreement.
Including:

7
BASIC PRINCIPLES OF THE WTO, EXCEPTIONS AND TRANSPARENCY, Azerbaijan and World Trade
Organization, < http://wto.az/en/wto/basic-principles-of-the-wto-exceptions-and-transparency/ > truy cập
ngày 5/10/2020.
8
tlđd (3).
9
Stéphanie Cartier, “Dispute Settlement” (United Nations Conference on Trade and Development
(UNCTAD), New York and Geneva, 2003), p.50.
  Part I: MFN concessions with respect to agricultural products and non-agricultural
products;
 Part II: Preferential Concession;
 Part III: Concession on non-tariff measures;
 Part IV: Specific commitments on domestic support and export subsidies on
agricultural products.

These schedules describe the treatment a WTO member must provide to traded goods of
other WTO members. This includes so-called “bound” or maximum duties. Goods
schedules are one of the main WTO tools to ensure transparency, security and predictability
for world trade.

Viet Nam’s market access commitment regarding smart phone: In the information
service, at radio information service tool (including telephone service and data service),
Vietnam has committed to limit opening in WTO, EVFTA and TPP; however, specific level
of openness (TPP is narrower than WTO and EVFTA). Besides, Vietnamese law is also
open as committed to TPP

 Question 4: What are the elements to determine specific tariffs’ obligations

(the amount of money submittable to the government) of an imported good?

A specific tariff is levied as a fixed amount of money submittable to the government

charged per unit of imports or according to the weight or measurement of the commodity
imported. It is one of two types of tariffs classified on the basic of criterion for imposition
(Specific tariff & Ad Valorem tariff).

Specific duties are quite easy to administer, as they do not involve the evaluation of the
goods and the government able to keep out of complexities of prices. Thus, they just can be
levied on low valued goods like wheat, rice, fertilizers, cement, sugar, cloth, etc.

 Question 5: What is tariffs’ classification and how does WTO regulate this
matter? What is an HS Code, what organization published it and how was it
published? Can WTO members use HS Code to classify their tariffs? Why?
  What is tariffs’ classification and How does WTO regulate this matter?

Like tariff rates, tariff classifications are one of the basic components of the tariff
system. National tariffs are organized in the form of tables that consist of “tariff
classification numbers” assigned to goods, and a corresponding tariff rate. The way in which
an item is classified for tariff purposes will have an important and palpable effect on the
duties charged. When classifications are applied in an arbitrary fashion, they can in effect
nullify rate reductions.

The GATT contains no rules regarding tariff classifications. In the past, countries had
their own individual systems. However, as trade expanded countries recognized the need for
more uniform classifications, which resulted in the drafting in 1988 of the “Harmonized
Commodity Description and Coding System” or “HS” system at Customs Co-operation
Council (CCC; also known as the “World Customs Organization” or “WCO”). Today, most
countries use a harmonized system of six-digit tariff numbers.

(CHAPTER 4: TARIFFS https://www.google.com/url?

sa=t&source=web&rct=j&url=https://www.meti.go.jp/english/report/downloadfiles/gCT00
04e.pdf&ved=2ahUKEwiGoqy276jsAhXIxYsBHbOSB1AQFjAAegQIChAC&usg=AOvVaw1
rUCMgL6mYxEZ930CRp-Vf)

 What is an HS Code, what organization published it?

According to THE HARMONIZED SYSTEM – AMENDMENTS AND THEIR IMPACT

ON WTO MEMBERS’ SCHEDULES of WTO, The Harmonized Commodity Description
and Coding System – commonly known as the Harmonized System or HS - is an
internationally standardized nomenclature for the description, classification and coding of
goods. It is developed and maintained by the World Customs Organization (WCO),
formerly known as the Customs Co-operation Council - an independent intergovernmental
organization based in Brussels, Belgium, with over 200 member countries. It came into
effect in 1988.

 And how was it published?

 The HS code is arranged in a legal and logical structure with well-fined rules in order to
realize uniform classification worldwide. It is a six-digit indentification code published by 6
General Rules that must be completed in consecutive order. Following the summary of HS
rules from Wikipedia of the Trade Financial Global website, they include:

 GRI 1 prescribes how to classify products at the four-digit Heading level, based on
the wording of the headings and the relative HS Section and Chapter Notes.

 GRI 2 prescribes how to classify both incomplete and unassembled goods and
mixtures, as well as combinations of goods.

 GRI 3 prescribes how to classify products that are, prima facie, classifiable under two
different HS headings.

 GRI 4 prescribes how to classify products that cannot be classified according to

GRI’s 1, 2, and 3.

 GRI 5 prescribes how to classify packaging.

 GRI 6 prescribes how to classify products at the six-digit subheading level, based on
the wording of the subheadings and the relative HS Section and Chapter Notes.

 Can WTO members use HS Code to classify their tariffs? Why?

THE HARMONIZED SYSTEM – AMENDMENTS AND THEIR IMPACT ON WTO

MEMBERS’ SCHEDULES of WTO says: “System as the basis for customs tariffs and for
the compilation of international trade statistics. Although 85 WTO Members are contracting
parties to the HS Convention, practically all the remaining WTO Members apply it in spite
of not being contracting parties to it”. That points out HS code is used widely including
WTO members.

 Is there a global HS Code? The answer is NO.

According to the article - Understanding HS Code in International Trade (CFC): “You

should know exactly what the specific number in your specific country. But the first 6 digits
numbers are supposed the same across the whole world. Each country can modify by adding
two digits or four digits as per their requirements without changing first six digits.”
 That leads to the conclusion: WTO members use HS Code to classify their tariffs.

(https://cargofromchina.com/hs-code/)

 Question 6: Why do customs officers have to determine the value of

imported goods? What is the most relevant and common method to
determine customs value of imported goods?
According to Article VII there are provisions:

2. (a) The value for customs purposes of imported merchandise should be based on the
actual value of the imported merchandise on which duty is assessed, or of like merchandise,
and should not be based on the value of merchandise of national origin or on arbitrary or
fictitious values. *

(b)Actual value” should be the price at which, at a time and place determined by the
legislation of the country of importation, such or like merchandise is sold or offered for sale
in the ordinary course of trade under fully competitive conditions. To the extent to which the
price of such or like merchandise is governed by the quantity in a particular transaction, the
price to be considered should uniformly be related to either (i) comparable quantities, or (ii)
quantities not less favorable to importers than those in which the greater volume of the
merchandise is sold in the trade between the countries of exportation and importation.*

(c) When the actual value is not ascertainable in accordance with subparagraph (b) of this
paragraph, the value for customs purposes should be based on the nearest ascertainable
equivalent of such value. *

Therefore, the customs officers must determine the value of imported goods in order to
properly calculate the tax.

(GATT 1994)

Today, there are the following tax calculation methods:

- Specific taxation (absolute tax): tax on the quantity of goods but not by the unit.
Usually applied in developing countries.
- Net Price Tax: A tax on the value of the goods and at a certain rate.
 Some countries apply both of the above tax calculation methods such as the US,
Australia, Korea,... That method is called a mixed method. This is the most popular method
due to the limitation of the absolute calculation method that only applies to a few specific
goods.

(Nguyễn Tất Thắng, 2018,Luận văn thạc sĩ chuyên ngành Quản trị kinh doanh)

 Question 7: What is the Rule of Origin? How does WTO regulate this Rule?
Distinguish between wholly-obtained Rule of Origin and not wholly-obtained
Rule of Origin.

According to Agreement on Rules of Origin:

Rules of origin (ROO) are the rules to determine the country of origin of goods. Since the
application of a certain customs and tariff policy (i.e. applicable tariff rates) depends on the
origin of goods, ROO is necessary so that the origin of goods is determined in an objective
manner.

For the purposes of Parts I to IV of this Agreement, rules of origin shall be defined as
those laws, regulations and administrative determinations of general application applied by
any Member to determine the country of origin of goods provided such rules of origin are
not related to contractual or autonomous trade regimes leading to the granting of tariff
preferences going beyond the application of paragraph 1 of Article I of GATT 1994.”

(GATT- WTO)

Rules of origin are used:

- to implement measures and instruments of commercial policy such as anti-dumping duties

and safeguard measures;

- to determine whether imported products shall receive most-favored-nation (MFN)

treatment or preferential treatment;

- for the purpose of trade statistics;

- for the application of labelling and marking requirements; and

- for government procurement.

 (Technical Information on Rules of Origin-WTO)

Distinguish between wholly-obtained Rule of Origin and not wholly-obtained Rule of

Origin:

 Wholly-obtained Rule of Origin

(1) Goods originating in a country shall be those wholly obtained or produced in that
country.

(2) The expression `goods wholly obtained in a country` means:

(a) mineral products extracted within that country;

(b) vegetable products harvested therein;

(c) live animals born and raised therein;

(d) products derived from live animals raised therein;

(e) products of hunting or fishing carried on therein;

(f) products of sea-fishing and other products taken from the sea outside a country’s
territorial sea by vessels registered or recorded in the country concerned and flying the flag
of the country;

(g) goods obtained or produced on board factory ships from the products referred to in
subparagraph (f) originating in that country, provided that such factory ships are registered
or recorded in that country and fly its flag;

(h) products taken from the seabed or subsoil beneath the seabed outside the territorial
sea provided that that country has exclusive rights to exploit that seabed or subsoil;

(i) waste and scrap products derived from manufacturing operations and used articles,
if they were collected therein and are fit only for the recovery of raw materials;

(j) goods which are produced therein exclusively from goods referred to in
subparagraphs (a) to (i) or from their derivatives, at any stage of production.

(3) For the purposes of paragraph 2 the expression “country” covers that country’s territorial
sea.
(4) The Government shall prescribe the criteria concerning the procedure and the manner for

proving origin of goods.

(Kyoto Convention, Annex K Chapter 1)

 Not wholly-obtained Rule of Origin

Not less than 40% of its content originates from any Party; or

If the total value of the materials, part or produce originating from outside of the territory
of a Party (i.e. non-ACFTA) does not exceed 60% of the FOB value of the product so
produced or obtained provided that the final process of the manufacture is performed within
the territory of the Party.

(RULES OF ORIGIN FOR THE ASEAN-CHINA FREE TRADE AREA)

 Question 8: What are Quotas, how does WTO regulate these measures?

In international trade, quotas are limits set by governments to adjust the quantity or
value of goods and services imported or exported from a certain country over a certain
period of time. Countries use quotas in international trade to help adjust the volume of trade
between them and other countries. Quota is used for the purpose of protecting external
financial situation and balance of payments; prevent scarcity of essential products. In some
cases, quotas are applied by developing country governments to protect industries or
promote economic development.

The quota is selectively applied to different countries. The ultimate goal of the quota is
to encourage the production of more products domestically and to import fewer products
from other countries. This also helps the country become more self-sufficient, creates more
products, and limits the level of dependence of one country on another.

Quotas are more effective than tariffs in terms of restricting trade, especially if the
domestic demand for a commodity is low price sensitivity. Since the effects of quotas
cannot be compensated for by foreign currency devaluations or export subsidies, quotas may
have a greater effect on the international trade regime than tariffs.
 When applying quotas, the WTO requires members to comply with the following
conditions such as restrictions on domestic production or consumption. The Government
commits not to affect the interests of other members, at the same time, it must gradually
loosen these measures when the economy recovers, then remove them completely in order
to implement the general principles of the WTO. The quota is characterized by a low legal
status, non-transparency and susceptibility to alterations and negative incarnations. Usually,
the quota is applied for one year, the government must announce the specific time and
change if any.

(https://www.investopedia.com/terms/q/quota.asp

https://www.britannica.com/topic/quota

https://study.com/academy/lesson/what-is-a-quota-definition-example.html)

 Question 9: Summary the case law EC - Chicken Cut (2005), Appellate Body
Report at the issues concerning "Salted" in Heading 02.10 of the EC
Schedule.

CASE: EU - Chicken Cut (2005)

- Complainant: Brazil, Thailand

- Respondent: EU

- Product: frozen salted chicken cuts 1-2%

Measure in question: EC measures relating to tariff reclassification from heading 02.10

(in relation to, with regard to salted chicken):

 Conventional Meaning (VCLT Article 31 (1)): The Appellate Body upholds the
Panel’s conclusion that “by the nature, the ordinary meaning of the term ‘salt’...
shows that the character of the a product that has been modified through the addition
of salt “and” nothing within the meaning including the usual meaning of the term
“salt” indicates that salted chicken is not covered by concessions. in heading 02.10 of
EC Schedule”.
 Background (VCLT Article 31 (2)): Having considered relevant context including
explanatory notes to the EC schedule and the Harmonized Tariff Classification
System to explain the term “salt”, The Appellate Body upheld the Pane’s conclusion
that the term “salt” in the relevant EC tariff commitments is not necessarily
characterized by the concept of permanent preservation as established by the
European Communities. Comment, which covers both concepts, i.e. “preparation”
and “preservation” by adding salt.
 Follow-up practice (VCLT 31 (3) (b)): Appellate Body, reversing the Panel’s
interpretation and application of the concept of “follow-up practice” in the sense of
this Article. 31 (3) (b), provides a separate interpretation of “follow-up practice” to
the extent that the importing Member’s practice alone cannot constitute the “follow-
up practice”. Consequently, it reversed the Panel’s conclusion that the EC practiced
classifying the products in question under heading 02.10 from 1996 to 2002
equivalent to “follow-up practice” in the sense of VCLT 31 (3) (b).
 Conclusion Cases (VCLT 32): The Appellate Body upholds the Panel's conclusion
that additional means of explanation are considered under the VCLT Article. 32
(including cases ended at the time of tariff negotiations, such as Community law on
customs classification, relevant European Court of Justice rulings and classification
practices EC) certifies that the products in question are covered by tariff
commitments under heading 02.10 of the EC Schedule.

(https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds286sum_e.pdf)