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The safeguards mess: a critique of WTO jurisprudence

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  • SYKES, ALAN O.

Abstract

The creation of the WTO revived the use of ‘safeguard’ measures to protect troubled industries against surges in import competition. Many of these measures have now been challenged in the WTO dispute resolution process, and in each case the process has found the challenged measure to be a violation of WTO law. This paper examines the WTO rules on safeguards from an economic perspective. Among other things, it argues that the textual preconditions for the use of safeguards in the treaty text are incoherent, and that the Appellate Body has compounded the problem through a series of dubious and unhelpful rulings. The result is a situation in which nations cannot use safeguards without facing a near certainty that they will be found invalid. Those who believe that safeguard measures are wasteful protectionism may welcome these developments, but it is by no means clear that the trading system will benefit in the long run.

Suggested Citation

  • Sykes, Alan O., 2003. "The safeguards mess: a critique of WTO jurisprudence," World Trade Review, Cambridge University Press, vol. 2(3), pages 261-295, November.
    • Handle: RePEc:cup:wotrrv:v:2:y:2003:i:03:p:261-295_00
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    Cited by:

    1. Chad P. Bown, 2005. "Trade Remedies and World Trade Organization Dispute Settlement: Why Are So Few Challenged?," The Journal of Legal Studies, University of Chicago Press, vol. 34(2), pages 515-555, June.
    2. Bown, Chad, 2007. "Developing Countries and Enforcement of Trade Agreements: Why Dispute Settlement Is Not Enough," CEPR Discussion Papers 6459, C.E.P.R. Discussion Papers.
    3. Staiger, Robert & Bagwell, Kyle & Bown, Chad, 2015. "Is the WTO Passé?," CEPR Discussion Papers 10672, C.E.P.R. Discussion Papers.
    4. Kyle Bagwell & Chad P. Bown & Robert W. Staiger, 2016. "Is the WTO Passé?," Journal of Economic Literature, American Economic Association, vol. 54(4), pages 1125-1231, December.
    5. Mostafa Beshkar, 2016. "Arbitration and Renegotiation in Trade Agreements," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 32(3), pages 586-619.
    6. Horn, Henrik & Mavroidis, Petros C., 2006. "A Survey of the Literature on the WTO Dispute Settlement System," Working Paper Series 684, Research Institute of Industrial Economics.
    7. Simon Schropp, 2007. "Revisiting the "Compliance-vs.-Rebalancing" Debate in WTO Scholarship a Unified Research Agenda," IHEID Working Papers 29-2007, Economics Section, The Graduate Institute of International Studies, revised Dec 2007.
    8. Productivity Commission, 2008. "Safeguards Inquiry into the Import of Pigmeat," Inquiry Reports, Productivity Commission, Government of Australia, number 44.
    9. Bown, Chad, 2019. "The 2018 US-China Trade Conflict After 40 Years of Special Protection," CEPR Discussion Papers 13695, C.E.P.R. Discussion Papers.
    10. Mostafa Beshkar & Jee-Hyeong Park, 2017. "Dispute Settlement with Second-Order Uncertainty: The Case of International Trade Disputes," CAEPR Working Papers 2017-010, Center for Applied Economics and Policy Research, Department of Economics, Indiana University Bloomington.
    11. Chad P. Bown, 2014. "Trade Policy Flexibilities and Turkey: Tariffs, Anti-dumping, Safeguards and WTO Dispute Settlement," The World Economy, Wiley Blackwell, vol. 37(2), pages 193-218, February.
    12. Charnovitz, Steve, 2012. "US Special Safeguard on Imports of Tires from China: Imposing Pain for Little Gain," CEPR Discussion Papers 9217, C.E.P.R. Discussion Papers.
    13. Bown, Chad P. & Keynes, Soumaya, 2020. "Why Trump shot the Sheriffs: The end of WTO dispute settlement 1.0," Journal of Policy Modeling, Elsevier, vol. 42(4), pages 799-819.
    14. Bown, Chad P., 2014. "Trade policy instruments over time," Policy Research Working Paper Series 6757, The World Bank.
    15. Tadashi Ito, 2007. "NAFTA and productivity convergence between Mexico and the US," IHEID Working Papers 26-2007, Economics Section, The Graduate Institute of International Studies, revised 27 Nov 2007.
    16. Kagitani, Koichi & Harimaya, Kozo, 2015. "Safeguards and voluntary export restraints under the World Trade Organization," Japan and the World Economy, Elsevier, vol. 36(C), pages 29-41.
    17. Jason S. Davis, 2022. "Screening for losers: Trade institutions and information," The Review of International Organizations, Springer, vol. 17(1), pages 1-37, January.
    18. Simon Schropp, Kornel Mahlstein, 2007. "The Optimal Design of Trade Policy Flexibility in the WTO," IHEID Working Papers 27-2007, Economics Section, The Graduate Institute of International Studies, revised Dec 2007.
    19. Benjamin H. Liebman & Kasaundra M. Tomlin, 2008. "Safeguards and Retaliatory Threats," Journal of Law and Economics, University of Chicago Press, vol. 51(2), pages 351-376, May.
    20. Mostafa Beshkar, 2014. "Arbitration and Renegotiation in Trade Agreements," Caepr Working Papers 2014-004, Center for Applied Economics and Policy Research, Economics Department, Indiana University Bloomington.
    21. Henry W. Kinnucan & Øystein Myrland, 2006. "The Effectiveness of Antidumping Measures: Some Evidence for Farmed Atlantic Salmon," Journal of Agricultural Economics, Wiley Blackwell, vol. 57(3), pages 459-477, September.
    22. Bown, Chad P. & Ruta, Michele, 2008. "The economics of permissible WTO retaliation," WTO Staff Working Papers ERSD-2008-04, World Trade Organization (WTO), Economic Research and Statistics Division.
    23. Steve Charnovitz & Bernard Hoekman, 2013. "US-Tyres: Upholding a WTO Accession Contract – Imposing Pain for Little Gain," Working Papers 2013-12, The George Washington University, Institute for International Economic Policy.
    24. Bernard Hoekman & Petros Mavroidis, 2023. "Reassessing the Safeguards Mess," RSCAS Working Papers 2023/14, European University Institute.

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