This study explored whether there is an inherent inequitable nature of the liberalization process with respect to the World Trade Organization Agreements, namely TRIMs (Trade-related Investment Measures), TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) and the Agreement on Agriculture.

In the early 2000’s Canada and France were at the forefront of what appeared to be a counter-hegemonic movement in the rapid creation of the Convention for the Protection and Promotion of the Diversity of Cultural Expressions at UNESCO to perceived US cultural hegemony at the World Trade Organization. However, the final Convention lacks the fundamental protections it set out to create and reinforces the commodification of culture and the promotion of cultural industries, rather than challenging commodification or supporting arts and culture. This thesis uses Marxian critical theories to interrogate the nature and form of the Canadian government’s involvement in the creation of the Convention and posits Gramscian evidence of the presence of behaviours of hegemony and resistance to hegemony, the formation of a Weltanschauung (common sense world view) led by organic intellectuals in civil society and demonstrates important instances of trasformismo (absorption of counter-hegemonic ideas) at work. / Graduate

Regional integration is not a new phenomenon in Africa. It can be traced back to the creation of the Southern African Customs Union (SACU) in 1917, which was the world's first customs union. Upon gaining independence, states formed the Organization of African Unity (OAU). At that time, Heads of States viewed regional integration as a protectionist measure against colonialism and as a way of forming a self-sustaining continent. However, the additional challenges facing Africa over time prompted various initiatives by Heads of States which were aimed at deepening integration on the continent. Notable actions include the signing of the Abuja Treaty, which established the African Economic Community (AEC), and the replacement of the OAU by the African Union (AU). Further, the continent experienced an increase in the number of Regional Economic Communities (RECs) and there are now fourteen RECs. Despite the steps taken to further integration, the success of such regional integration on the continent has been minimal and Africa has become even more marginalized on the global market. This lack in progression can be attributed to challenges such as inadequate resources, overlapping memberships in multiple RECs and duplicated programmes and efforts. Another challenge that is not readily recognized is the lack of attention to the role of law in economic integration. RECs have largely focused on the economic and political aspects of regional integration but have given minimal attention to the necessity of a strong legal foundation. RECs develop community law and these laws should be enforceable within Member States. However, due to the weak legal systems of RECs in Africa that do not make community law supreme, enforceability of this law has proven challenging. Comparatively, other RECs such as the European Union, have achieved deeper levels of integration and this can partly be attributed to the strong legal systems that have been developed. It is on the basis of this challenge that this study is conducted. The study aims to provide an in-depth analysis of the weaknesses of existing legal systems of the Southern African Development Community (SADC) and the Common Market for Eastern and Southern Africa (COMESA). The study further analyses the manner in which other RECs, such as the European Union and the Economic Community of West African States, have successfully integrated through law, with the aim of identifying solutions for the existing weaknesses in Southern Africa.

The WTO is one piece in a complex network of international, regional and domestic legal systems and regulatory frameworks. The influences on the development of WTO law extend far beyond its own Members and institutions: domestic legal instruments have provided the inspiration for numerous WTO obligations while the rights and obligations under the covered agreements are frequently incorporated into the legal systems of the Membership. The WTO is home to numerous committees and working groups that also engage with other international bodies and their domestic counterparts. Transnational actors seek to take advantage of these networks, encouraging WTO law to develop in their favour. The interactions involved, however, are highly complex and unpredictable. By drawing on different models of causal explanation, it is possible to offer a perspective on the development of WTO law that accepts its role as part of a larger globalized process. Three different causal influences are identified: instrumental, systemic and constitutive. Together, they offer a prism through which to examine the development of WTO law as it responds to the behaviour of transnational actors, bridging gaps between international relations and law and, it is hoped, offering a convincing explanatory rationale for the way in which WTO law develops.

"Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de maîtrise en droit (LL.M) option recherche" / Encore une fois, il semble que la question des subventions agricoles ait refait surface comme l'élément clé du présent cycle de négociations commerciales multilatérales à l'Organisation mondiale du commerce (OMC). Pourtant, le cycle d'Uruguay, qui s'est achevé en 1994, avait tenté de rétablir l'agriculture comme un secteur «normal» de négociations à l'OMC. Or, il semble que plutôt que d'en faire un secteur comme les autres en ce qui a trait aux subventions, le cycle d'Uruguay ait surtout contribué à établir un régime de disciplines pour l'agriculture qui se distingue à plusieurs égards du régime général établi par l'Accord sur les subventions et les mesures compensatoires (SMC). Une analyse des disciplines en place lors du système GATT (1947-1994) démontre que ce double régime n'avait pas formellement été mis en place avant la conclusion, en 1994, de l'Accord SMC et de l'Accord sur l'agriculture. En fait, malgré quelques distinctions qui sont apparues graduellement, ce clivage ne s'est véritablement effectué qu'à partir du cycle d'Uruguay. Tant sur le plan des subventions à l'exportation que du soutien interne, il apparaît que le système actuel impose des règles beaucoup moins contraignantes pour les subventions de produits agricoles que pour tout autre produit. Cette situation s'explique, en partie, par le haut degré de sensibilité politique de l'agriculture, de même que par certaines particularités économiques intrinsèques à cette industrie. L'avenir de ce double régime demeure encore incertain. Il semble cependant qu'aucun changement en profondeur ne peut être anticipé pour le présent cycle de Doha. / Once again, it seems that the issue of agricultural subsidies has emerged has the key concern of the current round of WTO multilateral trade negotiations - even as the Uruguay Round, which was completed in 1994, had tried to bring agriculture back into a "normal" negotiating sector at the WTO. Rather, it seems that instead of making it a sector like any other concerning subsidies, the Uruguay Round has above al1 contributed to establish a regime of disciplines for agriculture that distinguished itself in many respect from the general regime established by the Agreement on Subsidies and Countervailing Measures (SCM). An examination of disciplines in place during the GATT system (1947-1994) shows that this double regime was not formally instituted before the conclusion, in 1994, of the SCM Agreement and of the Agreement on Agriculture. In fact, despite a few distinctions that evolved gradual1y, this division only real1y established itself from the Uruguay Round onwards. With regard to export subsidies as wel1 as to domestic support, it appears that the current system subjects subsidies in the field of agriculture to rules are substantially less restricting than subsidies in other fields. This situation can be explained in part by the high degree of political sensitivity in agriculture, as wel1 as by some of the intrinsic economic characteristics of this sector. The future of this double regime remains uncertain. However, it seems that no major change can be expected during the current Doha Round.

Thesis (Ph.D.)--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Law / The research is divided in seven sections where the problem of the interpretation and applicability of Art XXIII GATT to the Laws and Practices under the Anti-Dumping Agreement is examined. Chapter I identifies the problems, raises the research question and gives an overview of the current state of the matters under observation. In Chapter II the general theory of interpretation is studied and subsequently applied to Art XXIII specifically, taking into account the meaning, scope, historical evolution and current interpretations of Art XXIII. Chapter III revises the theory of coherent interpretation of Art XXIII in connection with the Anti-Dumping Agreement specifically. The constitutional structure and principles of the WTO are questioned, dissected and supported to decant a handful of fundamental principles which shall inform the rest of the interpretation applied in the research. This chapter takes the interpretation from an abstract perspective to a material view of a coherent interpretation of both Art. XXIII and the Anti-Dumping Agreement. Chapter IV revises the facts, laws and practices of Anti-Dumping being used as a protectionist measure in disguise both using procedural and substantial arguments which are illustrated in the laws and practices of seven countries. The findings in Chapter IV lead to Chapter V which questions the legitimacy and validity of considering the possible applicability of Art XXIII to the anti-Dumping Agreement as it is currently implemented by the WTO membership. Those reflections lead to the consideration and mention of Competition as a public good in international trade in Chapter VI, which is a key element for the final findings of this research. The conclusion of this research is inclined to suggest that in order to keep the legal system of the WTO functional, a stronger economic constitutional approach that allows for the application of art XXIII in situations subversive to the principles of free trade is necessary. The adaptation of a theory of an economic constitution is proposed.

The application of anti-dumping and countervailing measures has always been controversial, particularly, as they do not address the issue of the level of local value added in the production process. Are these measures simply industry assistance measures under another guise, or are they to protect the 'fair trade' framework to further the opportunity for free trade? All the indications are that these measures reflect the former option. However, the global political climate as represented through the GATT and now the WTO Agreements is to tolerate the imposition of both anti-dumping and countervailing measures provided they are applied according to the provisions of the Agreements. It is becoming increasingly more difficult for any nation state to abolish the right of their 'guest' industries to obtain anti-dumping or countervailing relief, given the economic power of multinational industries operating within their boundaries. The practical issue is for each nation state to use these measures in a way which is of least detriment to their economy. Gruen in 1986 reviewed the application of the then Customs Tariff (Anti-Dumping) Act 1975, and found that there needed to be a tightening-up of the injury test applied to anti-dumping cases. It is recommended that Gruen's tougher injury standards be implemented forthwith. He also recommended a continuing role for the Industry Commission as the appeal body for a review of the facts, and for there to be a continuing assessment of the effects of the measures imposed. The government, however, created an Anti-Dumping Authority attached to the then Department of Industry Technology and Commerce (DITAC), whose member and officers came from that department. The principal function of this body was to review the preliminary decisions of Customs, and to recommend the imposition of duties or acceptance of an undertaking to the Minister. There was no provision for an independent review of facts. One of the results of the increased complexity of the existing process and consequently the law, is a large increase in litigation before the Federal Court. There is a need to simplify the administrative structure and the provisions of the domestic law. The latter should be accomplished by the incorporation of the provisions of the WTO Agreements directly into domestic law. The espoused policy objectives of the government have not been met. The application of anti-dumping and countervailing measures favour import competing industries, and are against countries from which imports are growing. Korea and China have been singled out, with these countries showing the highest incidence of import weighted of anti-dumping measures. They also happen to be countries with which Australia has a trade surplus, a policy factor which is neglected by the administering authorities. There is a need to redress this imbalance. Predation identified by the government as a reason for taking anti-dumping action, has been shown not to be a reason for the application of anti-dumping duties in Australia. As a small country, Australia should take advantage of the use of the WTO dispute settlement process in settling anti-dumping and countervailing disputes. Consultations should commence at the earliest possible stage in inquiries, with the view to the settlement of the dispute by trade negotiation so that the outcome can be beneficial to both parties. This may, for example, allow for the specialisation in production between the two Members. WTO dispute settlement is seen as a positive approach to dispute settlement, whereas the use of the domestic courts tends to elevate the dispute between the parties. The Department of Foreign Affairs and Trade needs to take a leadership role in settling all anti-dumping and countervailing actions through the WTO dispute settlement process, with a view to a positive outcome for both Members. Placing an anti-dumping import tax on intermediate products entering Australia is counter-productive, as it increases the cost of inputs to downstream users. Temporary relief should be given by way of production subsidy, if the matter cannot be resolved through WTO trade consultations.

In Europe of the Middle Ages, there existed an autonomous regime of truly private international business law based upon the customs and usages of merchants, the Law Merchant, administered in lay tribunals. The courts and legislators usurped the jurisdiction of the lay tribunals, and subverted the Law Merchant to municipal law. Arbitration was similarly subverted to municipal courts and strict legal controls. The courts continued to guard their jurisdiction jealously into the 20th century, when nations came to realize the inadequacy of national legal systems for international business problems, and the desire of business to escape parochial legal concerns and municipal courts. Canada adopted the New York Convention and UNCITRAL Model Law in 1986, which maximize party and arbitral autonomy and restrict court interference with arbitration. These new laws would permit the resurrection of an autonomous regime of international commercial dispute settlement largely divorced from national law and court controls, if the courts cooperate. This thesis is the first comprehensive, up-to-date study (of which I am aware) of Canadian case law on arbitration in the context of the history of autonomous commercial dispute resolution from the its zenith in the Middle Ages through its nadir, to its present attempted resurrection. This thesis shows that the courts of Canada continue to guard their jurisdiction jealously, finding the means in old notions and precedents to justify their refusal to cede jurisdiction to arbitrators. The courts have ignored the policies underlying the new laws, have failed to apply international precedents and standards, and have continued to apply notions and precedents from an era hostile to arbitration.

Encore une fois, il semble que la question des subventions agricoles ait refait surface comme l'élément clé du présent cycle de négociations commerciales multilatérales à l'Organisation mondiale du commerce (OMC). Pourtant, le cycle d'Uruguay, qui s'est achevé en 1994, avait tenté de rétablir l'agriculture comme un secteur «normal» de négociations à l'OMC. Or, il semble que plutôt que d'en faire un secteur comme les autres en ce qui a trait aux subventions, le cycle d'Uruguay ait surtout contribué à établir un régime de disciplines pour l'agriculture qui se distingue à plusieurs égards du régime général établi par l'Accord sur les subventions et les mesures compensatoires (SMC). Une analyse des disciplines en place lors du système GATT (1947-1994) démontre que ce double régime n'avait pas formellement été mis en place avant la conclusion, en 1994, de l'Accord SMC et de l'Accord sur l'agriculture. En fait, malgré quelques distinctions qui sont apparues graduellement, ce clivage ne s'est véritablement effectué qu'à partir du cycle d'Uruguay. Tant sur le plan des subventions à l'exportation que du soutien interne, il apparaît que le système actuel impose des règles beaucoup moins contraignantes pour les subventions de produits agricoles que pour tout autre produit. Cette situation s'explique, en partie, par le haut degré de sensibilité politique de l'agriculture, de même que par certaines particularités économiques intrinsèques à cette industrie. L'avenir de ce double régime demeure encore incertain. Il semble cependant qu'aucun changement en profondeur ne peut être anticipé pour le présent cycle de Doha. / Once again, it seems that the issue of agricultural subsidies has emerged has the key concern of the current round of WTO multilateral trade negotiations - even as the Uruguay Round, which was completed in 1994, had tried to bring agriculture back into a "normal" negotiating sector at the WTO. Rather, it seems that instead of making it a sector like any other concerning subsidies, the Uruguay Round has above al1 contributed to establish a regime of disciplines for agriculture that distinguished itself in many respect from the general regime established by the Agreement on Subsidies and Countervailing Measures (SCM). An examination of disciplines in place during the GATT system (1947-1994) shows that this double regime was not formally instituted before the conclusion, in 1994, of the SCM Agreement and of the Agreement on Agriculture. In fact, despite a few distinctions that evolved gradual1y, this division only real1y established itself from the Uruguay Round onwards. With regard to export subsidies as wel1 as to domestic support, it appears that the current system subjects subsidies in the field of agriculture to rules are substantially less restricting than subsidies in other fields. This situation can be explained in part by the high degree of political sensitivity in agriculture, as wel1 as by some of the intrinsic economic characteristics of this sector. The future of this double regime remains uncertain. However, it seems that no major change can be expected during the current Doha Round. / "Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de maîtrise en droit (LL.M) option recherche"

The increase of antidumping measures could represent a source of mounting frictions in the trading systems among Canada, United States and Mexico. Mexico is an active user of antidumping measures suggesting that both private sector groups and government policy makers have found antidumping measures to be a convenient response to the pressures of import competition. / In the last two decades, Mexico has opened its economy to international commerce. Nevertheless, its economy and legal system are not comparable to those of the United States or Canada, although it has adopted analogous antidumping laws. The Mexican antidumping practice is based today on common law practices influencing civil law formalities. In the NAFTA context, more specifically, in its Chapter 19, legal problems facing the binational panel review system have arisen from Mexico's different legal tradition, notably in the areas of transparency and procedural issues, standard of review, parallel amparo and the power of panel vis-a-vis national courts. The procedural requirements of the Antidumping Agreement prove a challenge for Mexico and will likely lead to trade disputes concerning procedure because it lacks the tradition of administrative and legal process.