Mandatory Abolition of Anti-dumping, Countervailing Duties and Safeguards in Customs Unions and Free-Trade Areas Constituted Between World Trade Organization Members: Revisiting a Long-standing Discussion in Light of the Appellate Body's Turkey—Textiles

摘要

This article concludes that abolition of the possibility of applying anti-dumping, countervailing duties and safeguards in the part of the intra-RTA trade counting towards the fulfillment of the "substantially all the trade" threshold is mandatory for a RTA between WTO Members to qualify as a customs union or a FTA under GATT Article XXIV:8 interpreted pursuant to the VCLT. Accordingly, the authors also conclude that RTAs between WTO Members that were notified as customs unions or FTAs but generally allow internal application of trade remedies are illegitimate departures from MFN that lack justification on the basis of Article XXIV. The authors purport that this interpretation is further confirmed by the Appellate Body's statements on Article XXIV of the GATT in Turkey—Textiles, and bears no inconsistency with the context of the GATT 1994 and its practice.