Environmental Taxes and Trade Discrimination

Name: Environmental Taxes and Trade Discrimination
Brand: Kluwer Law International
Price: 329.99 EUR
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Ole Kristian Fauchald(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 1. Juni 1998

464 Seiten

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Beschreibung

Environmental taxes are relatively new instruments and are likely to constitute an essential part of countries' efforts to avoid environmental degradation. This work analyses the extent to which various categories of environmental taxes may be inconsistent with the non-discrimination provisions of the General Agreement on Tariffs and Trade 1994, and how such conflicts can be resolved within the existing rules. As non-discrimination obligations are fundamental rules in the multilateral trading system, such potential conflicts are of great importance both to the régime for the liberalisation of international trade and to environmental protection measures. The author provides a detailed analysis of the role and nature of environmental taxes, and assesses to what extent the relevant provisions of GATT 1994 may impede the use of these taxes, in light of the non-discrimination provisions, the general exceptions and the rules concerning nullification or impairment of benefits. The work also examines in general terms the possibilities of eliminating potential conflicts between environmental measures and the provisions of GATT 1994.

Table of Contents:

Part I - Introduction - 1. Introduction: 2. Environmental Problems and Strategies to Deal with Them - The Role of Environmental Taxes; 3. Introduction to Relevant Rules and Principles of GATT/WTO.
Part II - Internal Taxes - 4 General Introduction; 5. The Scope of Article III; 6. Product-Similarity Clauses; 7. Domestic and Foreign Products are Subject to Separate Tax Arrangements - Explicit Discrimination; 8 Domestic and Foreign Products are Subject to the Same Tax Arrangement - Implicit Discrimination.
Part III - General Exceptions - 9. General Issues; 10. Policy Purposes Covered by Article XX; 11. Requirements Concerning the Relationship between the Contested Measure and its Purpose; 12. The Preamble to Article XX.
Part IV - Nullification or Impairment of Benefits - 13. General Introduction; 14. Violation of the Agreement; 15. Non-Violation Nullification or Impairment; 16. Summary and Conclusions.
Annexes - Cases: Cases under the WTO-Agreement; Cases under GATT 1947; Miscellaneous. Documents: WTO GATT 1947; Guide to Documents Related to the WTO and GATT 1947; WTO Documents; GATT 1947 Documents; Preparatory Works; League of Nations Documents; Treaties; Resolutions, Declarations, Recommendations, etc.; Norwegian Acts and Regulations; Norwegian Official Documents; Miscellaneous.
Bibliography. Index.

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Dedication
Acknowledgements
Table of Contents
Abbreviations
PART I INTRODUCTION
Chapter 1 Introduction
1. PRESENTATION OF THE ISSUES TO BE EXAMINED
2. GENERAL OUTLINE OF THE BOOK
Chapter 2 Environmental Problems and Strategies to Deal with Them - the Role of Environmental Taxes
1. INTRODUCTION
2. ENVIRONMENTAL PROBLEMS AND SUSTAINABLE DEVELOPMENT
2.1 Environmental problems
2.2 Sustainable development
2.3 Sustainable exploitation and pollution of resources
3. PRINCIPLES RELATED TO ENVIRONMENTAL POLICIES
3.1 Introduction
3.2 The polluter-pays principle
3.3 Product life-cycle assessment
3.4 Effectiveness
3.5 Preventive action
3.6 The precautionary principle
4. VARIOUS STRATEGIES TO DEAL WITH ENVIRONMENTAL PROBLEMS
4.1 Introduction - categorisation of strategies
4.2 Economic strategies
4.3 Normative strategies
4.4 Informational strategies
4.5 Physical strategies
5. ENVIRONMENTAL TAXES
5.1 Definition of environmental taxes
5.2 The use and nature of environmental taxes
5.3 Competitiveness and effectiveness
6. ENVIRONMENTAL TAXES IN NORWAY
6.1 Introduction
6.2 Taxes related to raw materials or production processes
6.3 Energy-related taxes
6.4 Emission taxes
6.5 Transport-related taxes
6.6 Taxes on final products
6.7 Waste-related taxes
6.8 Some concluding remarks
Chapter 3 Introduction to Relevant Rules and Principles of GATT/WTO
1. INTRODUCTION
2. GENERAL INTRODUCTION TO THE RELEVANT RULES
2.1 The national treatment clause
2.2 The most-favoured-nation clause
2.3 General exceptions related to human, animal or plant life or health, and exhaustible natural resources
3. SOURCES OF LAW RELATED TO GATT 1994
3.1 Introduction
3.2 Diplomacy vs. legalism
3.3 General principles and rules concerning treaty interpretation
3.4 The status of interpretative materials related to GATT 1947
3.5 Categorisation of relevant interpretative materials
3.6 The wording of GATT 1994
3.7 The WTO Agreement and agreements covered by the WTO Agreement
3.8 General interpretative statements
3.9 Interpretative statements related to dispute settlement
3.10 Rules of international law
3.11 The preparatory works
3.12 The circumstances of the conclusion of GATT 1947
3.13 The opinions of highly qualified publicists
3.14 Reasonableness
PART II INTERNAL TAXES
Chapter 4 General Introduction
1. THE RELATIONSHIP BETWEEN ARTICLES I AND III
2. A BRIEF INTRODUCTION TO ARTICLE III:2
3. GENERAL OUTLINE OF PART II
Chapter 5 The Scope of Article III
1. THE GENERAL SCOPE OF ARTICLE III
1.1 Introduction
1.2 Services
1.3 Natural resources and raw materials
1.4 Waste
1.5 Packaging
2. WHAT ARE INTERNAL TAXES IN THE CONTEXT OF ARTICLE III?
2.1 General
2.2 Tariffs VS. internal taxes
2.3 Enforcement measures vs. internal taxes
2.4 Cost of services vs. internal taxes
2.5 Internal taxes and the operation of import monopolies
2.6 Countervailing and anti-dumping duties vs. internal taxes
2.7 Internal taxes vs. tax remissions and subsidies
3. THE LEGAL STATUS OF ARTICLE III:1
Chapter 6 Product-Similarity Clauses
1. INTRODUCTION
2. THE USE OF PRODUCT-SIMILARITY CLAUSES IN GATT 1994
3. "LIKE PRODUCTS
3.1 Introduction and historical background
3.2 Physical characteristics of products
3.3 Prior-stage product-related circumstances
3.4 The role of customs-related classification of products
3.5 Relationship between products in markets
3.6 Purposes
3.7 "Like products" in Article I
4. "DIRECTLY COMPETITIVE OR SUBSTITUTABLE PRODUCTS
4.1 Introduction
4.2 General interpretative issues
4.3 Demand substitutability
4.4 Supply substitutability
4.5 Purposes
4.6 "Competition was involved
5. ARTICLE III:1
6. CONCLUSIONS
Chapter 7 Domestic and Foreign Products are Subject to Separate Tax Arrangements - Explicit Discrimination
1. INTRODUCTION
2. SEPARATE TAX ARRANGEMENTS AND ENVIRONMENTAL PROTECTION
3. BORDER TAX ADJUSTMENT
4. WHICH ASPECTS OF TAX ARRANGEMENTS ARE RELEVANT UNDER ARTICLE III:2?
4.1 Introduction
4.2 Article III:2, first sentence
4.3 Article III:2, second sentence
5. WITH WHICH TAXES SHALL TAXES ON IMPORTS BE COMPARED?
5.1 General introduction
5.2 Explicit differential treatment and environmental protection
5.3 The wording and general scope of Article III:2
5.4 Input of substances to the production process
5.5 Consumption of energy in the production process
5.6 Emissions from the production process
5.7 Product-related services
5.8 Comparison to rules concerning tax rebate on exports
5.9 Multiple tax arrangements
6. THE NATURE OF THE DIFFERENTIAL TREATMENT
6.1 General introduction
6.2 "In excess" and "similarly taxed
6.2.1 Burden of proof
6.2.2 The level of differential treatment
6.2.3 The purpose of the differential treatment
6.3 "Applied ... so as to afford protection to domestic production
6.4 Risk that differential treatment will occur
7. NO DOMESTIC PRODUCTION
8. CONCLUSIONS
Chapter 8 Domestic and Foreign Products are Subject to the Same Tax Arrangement - Implicit Discrimination
1. INTRODUCTION
2. DISCRIMINATORY EFFECTS FROM ENVIRONMENTAL TAXES
3. ARTICLE III:2
3.1 Introduction
3.2 Presumption that differential treatment violates Article III:2
3.3 Geographical distribution of discriminatory effects
3.3.1 Introduction
3.3.2 Which domestic and imported products are of relevance?
3.3.3 Differential treatment based on other factors than the product
3.3.4 When should the discriminatory effects be present?
3.3.5 The second sentence of Article III:2
3.4 The level of the differential treatment
3.5 The purpose of the differential treatment
3.5.1 General issues
3.5.2 The perspective of the complainant
3.5.3 The perspective of the defendant
3.5.4 The time factor
3.5.5 The second sentence of Article III:2
3.6 "Applied ... so as to afford protection to domestic production
4. ARTICLE I:1
5. CONCLUSIONS
PART III GENERAL EXCEPTIONS
Chapter 9 General Issues
1. INTRODUCTION
2. RESTRICTIVE INTERPRETATION AND APPLICATION OF ARTICLE XX
2.1 Restrictive interpretation
2.2 Restrictive application
3. FRAGMENTARY APPROACH
4. UNILATERAL VS. MULTILATERAL MEASURES
5. EXTRAJURISDICTIONALITY
5.1 Introduction
5.2 The location of the environmental good
5.3 The location of the environmentally harmful activity
Chapter 10 Policy Purposes Covered by Article XX
1. INTRODUCTION
2. PROTECTION OF HUMAN, ANIMAL OR PLANT LIFE OR HEALTH
2.1 Introduction
2.2 "Animal" and "plant
2.3 "Health
3. CONSERVATION OF EXHAUSTIBLE NATURAL RESOURCES
3.1 Introduction
3.2 "Resources
3.3 "Exhaustible
3.4 "Natural
3.5 "Conservation
4. COMMODITY AGREEMENTS
5. PROTECTION OF PUBLIC MORALS
6. PROTECTION OF TREASURES OF ARTISTIC, HISTORIC OR ARCHAEOLOGICAL VALUE
7. MEASURES TAKEN TO SECURE COMPLIANCE WITH LAWS OR REGULATIONS
7.1 Introduction
7.2 The EEC - Anti-circumvention Legislation case
7.3 Enforcement measures vs. measures taken to promote the objectives of laws or regulations
8. CONCLUSIONS
Chapter 11 Requirements Concerning the Relationship between the Contested Measure and Its Purpose
1. INTRODUCTION
2. THE NECESSITY REQUIREMENT
2.1 "Necessary
2.2 "Reasonably available
2.2.1 General issues
2.2.2 Burden of proof
2.2.3 Issues related to settlement of disputes
2.3 "Least trade-restrictive
3. ARTICLE XX(g)
3.1 Introduction
3.2 "Relating to the conservation of exhaustible natural resources
3.2.1 Introduction
3.2.2 Case-law
3.2.3 "Primarily aimed at
3.2.4 Pursuance of other objectives
3.2.5 Achievement of the stated objective
3.2.6 Side-effects of the measure
3.2.7 Availability of less trade-restrictive alternatives
3.3 Restrictions on exports vs. restrictions on imports
3.4 "Made effective in conjunction with restrictions on domestic production or consumption
3.4.1 Introduction
3.4.2 Can the contested measure be the principal measure?
3.4.3 The relationship between the contested measure and restrictions on domestic production or consumption
3.4.4 The relationship between the resource and restrictions on domestic production or consumption
4. ARTICLE XX(h) - THE CONTESTED MEASURE AND COMMODITY AGREEMENTS
5. CONCLUSIONS
Chapter 12 The Preamble to Article XX
1. INTRODUCTION
2. "ARBITRARY OR UNJUSTIFIABLE DISCRIMINATION BETWEEN COUNTRIES WHERE THE SAME CONDITIONS PREVAIL
2.1 "Countries
2.2 "Same conditions
2.3 "Arbitrary or unjustifiable
3. "DISGUISED RESTRICTION ON INTERNATIONAL TRADE
3.1 Introduction
3.2 Transparency
3.3 Measures appearing to have been taken for legitimate purposes
4. CONCLUSIONS
PART IV NULLIFICATION OR IMPAIRMENT OF BENEFITS
Chapter 13 General Introduction
1. INTRODUCTION
2. HISTORICAL BACKGROUND
Chapter 14 Violation of the Agreement
1. GENERAL ISSUES
2. TRADE-RELATED EFFECTS VS. CONDITIONS OF COMPETITION
3. WHAT IS REQUIRED TO REBUT THE PRESUMPTION
4. CONSEQUENCES OF REBUTTAL OF THE PRESUMED NULLIFICATION OR IMPAIRMENT
5. CONCLUSIONS
Chapter 15 Non-Violation Nullification or Impairment
1. INTRODUCTION
2. "MEASURE" COMPLAINTS VS. "SITUATION" COMPLAINTS
3. THE SCOPE OF NON-VIOLATION COMPLAINTS
3.1 Which benefits may be subject to non-violation nullification or impairment?
3.2 Non-violation nullification or impairment and Article XX
3.3 Product-similarity issues
4. NULLIFICATION OR IMPAIRMENT
4.1 "Detailed justification
4.2 Adverse effects on competitive opportunities
4.2.1 Introduction
4.2.2 The nature of the measure
4.2.3 The nature of the benefit
4.3 Reasonable expectations
5. ATTAINMENT OF ANY OBJECTIVE
6. CONCLUSIONS
Chapter 16 Summary and Conclusions
1. SUMMARY
2. THE MAJOR AREAS OF CONFLICT
3. HOW TO DEAL WITH THE CONFLICTS?
4. SOME CONCLUDING REMARKS
Annexes
CASES
Cases under the WTO Agreement
Cases under GATT 1947
Miscellaneous
DOCUMENTS
WTO
GATT 1947
Guide to Documents Related to the WTO and GATT 1947
League of Nations Documents
Treaties
Resolutions, Declarations, Recommendations, etc.
Norwegian Acts and Regulations
Norwegian Official Documents
Miscellaneous
BIBLIOGRAPHY
Index
Back Cover

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