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European Yearbook of International Economic Law 2018 pp 61–80Cite as

Energy and Fossil Fuels as a Topic of WTO Accession Protocols

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Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 9))

Abstract

This contribution seeks to analyse and compare WTO Accession Protocols, particularly the interpretations given relevant commitments made in them regarding energy and fossil fuels. After first providing an outline of the accession process and its importance for the natural resources and energy sector, the chapter proceeds with discussing relevant sections of Accession Protocols of major energy producing, exporting and/or transporting WTO Members that have joined the Organization since 1995. This exercise demonstrates that energy and fossil fuels have gradually developed as prominent topics in Members’ accession negotiations, resulting in an increasing amount of commitments on transit and export duties on raw materials and fossil fuels.

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Notes

  1. 1.

    WTO upgrades forecast for 2017 as trade rebounds strongly, 21 September 2017, PRESS/800, https://www.wto.org/english/news_e/pres17_e/pr800_e.htm (last accessed 27 May 2018).

  2. 2.

    Since 29 July 2016 the WTO has 164 Members and covers ca. 98% of world trade. According to the most recent list of Current Accession Working Parties 22 countries seek membership, 6 of which are Least-Developed Countries (LDCs), List of Current Accession Working Parties, WT/ACC/17/Rev.6, 18 December 2017.

  3. 3.

    See e.g. Agreement on Trade Facilitation (TFA), WT/L/940, in force since 22 Feb. 2018; Weiss (1998), pp. 71–117.

  4. 4.

    Conditions of Admission of a State to membership in the United Nations, Advisory Opinion of 28 May 1948, Reported in International Law Quarterly, 2(3): 483–519.

  5. 5.

    Compare the similar yet different wording of Art. XXXIII, General Agreement on Tariffs and Trade, 1994, 1867 U.N.T.S. 187 (‘GATT’); see also Parenti (2000), pp. 141–157.

  6. 6.

    Article II:2 of the WTO Agreement provides that the Multilateral Trade Agreements in Annexes 1, 2 and 3 are “integral parts” of the WTO Agreement, Agreement Establishing the World Trade Organization, 1994, 1867 U.N.T.S. 154.

  7. 7.

    Accession to the World Trade Organization, Procedures for Negotiations under Article XII, WT/ACC/1, 24 March 1995 as revised by Accession to the World Trade Organization, Procedures for Negotiations under Article XII, Note by the Secretariat, WT/ACC/22/Rev.1, 5 April 2016.

  8. 8.

    Parenti (2000), p. 151.

  9. 9.

    See e.g. Accession of Ukraine, Decision of the General Council, WT/L/718, 13 February 2008, para 8.

  10. 10.

    E.g. Accession of Ukraine, Decision of the General Council, WT/L/718, 13 February 2008, para 2.

  11. 11.

    Appellate Body Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R, adopted 22 February 2012.

  12. 12.

    Appellate Body Reports, China – Measures Related to the exportation of Rare Earths, Tungsten and Molybdenum, WT/DS431/AB/R, WT/DS432/AB/R, WT/DS433/AB/R, adopted 29 August 2014.

  13. 13.

    Protocol on the Accession of the People’s Republic of China, WT/L/432, 23 November 2001: E.g. under Article 18 of Appendix 1A of the Accession Agreement, China is required to make annual notifications of non-automatic export restrictions.

  14. 14.

    For an account of the historical background and terminological usage see e.g. Weiss (2015), pp. 296ff.

  15. 15.

    Havana Charter for an International Trade Organization, UN Doc. E/Conf.2/78, 24 March 1948.

  16. 16.

    Article XX(h) GATT and Note Ad Article XX(h) GATT.

  17. 17.

    Report to The TPRB from the Director-General on Trade-Related Developments, WT/TPR/OV/W/8, 27 June 2014, p. 23. Despite their pledge to roll back protectionist measures, G-20 economies alone have introduced 1441 trade restrictive measures including trade remedies since 2008; 75% of these were still in place by October 2015, cf. Key findings in Joint OECD-WTO-UNCTAD Report on G-20 Trade and Investment Measures, 30 October 2015.

  18. 18.

    OECD (2014).

  19. 19.

    Japan, along with Switzerland, has made a proposal regarding export restrictions from the perspective of food importing countries aiming at tightening conditions for the implementation of export restrictions and for monitoring their continued use.

  20. 20.

    E.g. China, ASEAN, USA, Canada; on food stuff after 2010 e.g. Russia, Ukraine, India, Pakistan, Argentina, Kazakhstan.

  21. 21.

    Depending on their objectives several categories of export restrictions may be distinguished: (1) Export tariffs (taxes) to generate fiscal revenue; (2) Export restrictions/export tariffs (taxes) to protect domestic industries; (3) Export limits/export tariffs, taxes to protect domestic supply; (4) Investment-related export demand; (5) Miscellaneous other export restricting measures, e.g. diplomatic measures (pursuant to UN Security Council Resolutions, international treaties, international export control frameworks).

  22. 22.

    Liu (2014), pp. 751–771.

  23. 23.

    See WTO, ‘Protocols of accession for new members since 1995, including commitments in goods and services’, 30 November 2015, https://www.wto.org/english/thewto_e/acc_e/completeacc_e.htm (last accessed 27 May 2015).

  24. 24.

    Protocol for The Accession of The Republic of Ecuador to the Agreement Establishing the World Trade Organization, WT/ACC/ECU/6, 22 August 1995; Report of the Working Party on the Accession of Ecuador, WT/L/77 + Corr.1, 7 August 1995.

  25. 25.

    Report of the Working Party on the Accession of Ecuador, WT/L/77, 14 July 1995, para 7: ‘The only prices controlled by the State were internal prices of certain oil and gas products for domestic consumption, pharmaceuticals and electricity.’; Para 63 on State-Ownership and Privatization; State Trading Enterprises: ‘Furthermore, there were no monopolies in Ecuador except in the case of natural gas and some petroleum products.’ And, Pricing Policies, para 52: ‘The price-setting policy Ecuador had established in the 1970s had been virtually dismantled. The exceptions to this trend were fuels and gas for household use, where prices were set by the Ministries of Finance and Energy and Mining; and medicaments.’

  26. 26.

    UNCTAD (2001), p. 211.

  27. 27.

    Protocol of Accession of The Sultanate of Oman to the Marrakesh Agreement Establishing the World Trade Organization, (WT/ACC/OMN/28, 3 November 2000); Report of the Working Party on the Accession of Oman, WT/ACC/OMN/26, 28 September 2000, para 14; Also see IBP (2015), p. 114.

  28. 28.

    Report of the Working Party on the Accession of Oman, WT/ACC/OMN/26, 28 September 2000, paras 109–114, at para 112; Also see Jimenez-Guerra (2001), p. 23.

  29. 29.

    Report of the Working Party on the Accession of Oman, WT/ACC/OMN/26, 28 September 2000, paras 109–114, at para 112; Also see Jimenez-Guerra (2001), p. 23.

  30. 30.

    Report of the Working Party on the Accession of Oman, WT/ACC/OMN/26, 28 September 2000, p. 121; Article II:3, Agreement Establishing the World Trade Organization, 1994, 1867 U.N.T.S. 154; Annex 4, Agreement Establishing the World Trade Organization, 1994, 1867 U.N.T.S. 154.

  31. 31.

    Protocol on The Accession of The People’s Republic of China, WT/L/432, 23 November 2001; Report of the Working Party on the Accession of China, WT/MIN(01)/3, 10 November 2001.

  32. 32.

    Earth Policy Institute, Annual Solar Photovoltaics Production by Country, 1995–2012, 31 July 2013, www.earth-policy.org/datacenter/xls/indicator12_2013_2.xlsx (last accessed 27 May 2018).

  33. 33.

    Milthorp and Christy (2011), p. 314.

  34. 34.

    Milthorp and Christy (2011), p. 314 and Annex 4 to Protocol on The Accession of The People’s Republic of China, WT/L/432, 23 November 2001.

  35. 35.

    Milthorp and Christy (2011), p. 314 and Annex 4 to Protocol on The Accession of The People’s Republic of China, WT/L/432, 23 November 2001 and Protocol on The Accession of The People’s Republic of China, WT/L/432, 23 November 2001, para 64: ‘In response, the representative of China confirmed that China would apply its current price controls and any other price controls upon accession in a WTO consistent fashion, and would take account of the interests of exporting WTO Members as provided for in Article III:9 of the GATT 1994. He also confirmed that price controls would not have the effect of limiting or otherwise impairing China’s market-access commitments on goods and services. The Working Party took note of these commitments’.

  36. 36.

    Report of the Working Party on the Accession of China, WT/MIN(01)/3, 10 November 2001, p. 134, Table 2.

  37. 37.

    Report of the Working Party on the Accession of China, WT/MIN(01)/3, 10 November 2001, p. 134, Table 2, Annex 2A2 (‘Products Subject to State Trading Import’), paras 50–57 and 58–73, respectively, and Annex 2A2 (‘Products Subject to State Trading Export’), items 31–49, list coal, crude oil and processed oil.

  38. 38.

    Appellate Body Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R/WT/DS395/AB/R/WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295; Panel Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, Add.1 and Corr.1/WT/DS395/R, Add.1 and Corr.1/WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R/WT/DS395/AB/R/WT/DS398/AB/R, DSR 2012:VII, p. 3501; Appellate Body Reports, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/AB/R/WT/DS432/AB/R/WT/DS433/AB/R, adopted 29 August 2014; Panel Reports, China – Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WT/DS431/R and Add.1/WT/DS432/R and Add.1/WT/DS433/R and Add.1, adopted 29 August 2014, upheld by Appellate Body Reports WT/DS431/AB/R/WT/DS432/AB/R/WT/DS433/AB/R; note that paragraph 11.3 of China’s Accession Protocol (n 31) does not include a reference to the GATT, in contrast to newer Accession Protocols (Russia, Ukraine, Kazakhstan).

  39. 39.

    Panel Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R, Add.1 and Corr.1/WT/DS395/R, Add.1 and Corr.1/WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, paras 7.124–7.129; Appellate Body Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R/WT/DS395/AB/R/WT/DS398/AB/R, adopted 22 February 2012, paras 279–285.

  40. 40.

    Milthorp and Christy (2011), p. 306 ff.

  41. 41.

    Milthorp and Christy (2011), p. 306 ff.

  42. 42.

    Protocol on the Accession of The Kingdom of Saudi Arabia, WT/L/627, 11 December 2005; Report of the Working Party on the Accession of the Kingdom of Saudi Arabia, WT/ACC/SAU/61, 1 November 2005, para 28.

  43. 43.

    But it emphasised that this price was available to all on the domestic market, whether from domestic or foreign origin. See especially Report of the Working Party on the Accession of the Kingdom of Saudi Arabia (n 24) para 29; This is not deemed to be contrary to Article III.9 GATT.

  44. 44.

    Report of the Working Party on the Accession of the Kingdom of Saudi Arabia, WT/ACC/SAU/61, 1 November 2005, para 37, incorporating by reference the list in Annex A, which includes an exhaustive list of goods that are subject to price controls.

  45. 45.

    Milthorp and Christy (2011), p. 311 ff.

  46. 46.

    Report of the Working Party on the Accession of the Kingdom of Saudi Arabia, WT/ACC/SAU/61, subparagraph 44(i).

  47. 47.

    Report of the Working Party on the Accession of the Kingdom of Saudi Arabia, WT/ACC/SAU/61, subparagraph 44(iii).

  48. 48.

    Milthorp and Christy (2011), p. 312.

  49. 49.

    Report of the Working Party on the Accession of the Kingdom of Saudi Arabia, WT/ACC/SAU/61, subparagraph 44(vi).

  50. 50.

    Chiefly in the winters of 2005/2006 and 2009/2010.

  51. 51.

    Third party access policy requires the owners of natural monopoly infrastructure, such as gas pipelines and electricity grids, to grant access to those facilities to parties other than their own customers, usually competitors in the provision of the relevant services, often from other countries, on commercial terms comparable to those that would apply in a competitive market.

  52. 52.

    Protocol on the Accession of Ukraine, WT/L/718, 13 February 2008; Report of the Working Party on the Accession of Ukraine, WT/ACC/UKR/152, January 25, 2008, para 367.

  53. 53.

    Report of the Working Party on the Accession of Ukraine, WT/ACC/UKR/152/Add.2, 25 January 2008 (services incidental to energy distribution), and 33 (Pipeline Transport, and (a) transportation of fuels (CPC 7131)); Both sectors record commitments of ‘None’ in modes 1, 2 and 3, and ‘Unbound’ in mode 4 for both market access (right to participate in the market) and national treatment (non-discrimination against non-nationals).

  54. 54.

    Report of the Working Party on the Accession of Ukraine, WT/ACC/UKR/152/Add.2, 25 January 2008 (services incidental to energy distribution), and 33 (Pipeline Transport, and (a) transportation of fuels (CPC 7131)); Both sectors record commitments of ‘None’ in modes 1, 2 and 3, and ‘Unbound’ in mode 4 for both market access (right to participate in the market) and national treatment (non-discrimination against non-nationals).

  55. 55.

    Milthorp and Christy (2011), pp. 317ff.

  56. 56.

    Report of the Working Party on the Accession of Ukraine, WT/ACC/UKR/152, January 25, 2008, para 44.

  57. 57.

    Milthorp and Christy (2011), p. 318; The language agreed was sufficient for the US President to make the certification required by Section 1106.

  58. 58.

    Milthorp and Christy (2011), p. 317 referring to paras 63–67 of the Report of the Working Party on the Accession of Ukraine, WT/ACC/UKR/152, January 25, 2008.

  59. 59.

    Protocol on the Accession of the Russian Federation, WT/L/839 and WT/MIN(11)/24, 17 December 2011; Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011.

  60. 60.

    Milthorp and Christy (2011), p. 324; Marhold (2017), pp. 6–8.

  61. 61.

    The Eurasian Economic Union was established in 2014 and is comprised of Russia, Kazakhstan, Belarus, Kyrgyzstan and Armenia, see http://www.eaeunion.org/?lang=en (last accessed on 27 May 2018).

  62. 62.

    Milthorp and Christy (2011), p. 324; See also generally, Stewart and McDonough (2011); Global Intelligence Alliance (2012).

  63. 63.

    Milthorp and Christy (2011), p. 324.

  64. 64.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para. 270 and Federal Law No. 128-FZ of 8 August 2001 “On Licensing of Specific Types of Activity” (as last amended on 28 September 2010).

  65. 65.

    See Russia’s Schedule of Concessions and Commitments on Goods, Schedule CLXV, Part V, p. 853 and 870; HS Convention: The Harmonised System Convention (Harmonised Commodity Description and Coding System), 14 June 1983, 1503 U.N.T.S. 167, Chapter 27 Mineral fuels, mineral oils and products of their distillation; bituminous substances; mineral waxes.

  66. 66.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, Annex 1.

  67. 67.

    Milthorp and Christy (2011), p. 294.

  68. 68.

    Milthorp and Christy (2011), p. 294.

  69. 69.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, paras 120–133.

  70. 70.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 122.

  71. 71.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 123.

  72. 72.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 696.

  73. 73.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 127.

  74. 74.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 132.

  75. 75.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 132.

  76. 76.

    See European Commission, Factsheet, Antitrust: Commission send Statement of Objections to Gazprom, Brussels, MEMO/15/4829, 22 April 2015, http://europa.eu/rapid/press-release_MEMO-15-4829_en.htm (last accessed 27 May 2018).

  77. 77.

    European Commission, Factsheet, Antitrust: Commission send Statement of Objections to Gazprom, Brussels, MEMO/15/4829, 22 April 2015, http://europa.eu/rapid/press-release_MEMO-15-4829_en.htm (last accessed 27 May 2018).

  78. 78.

    European Commission, Factsheet, Antitrust: Commission send Statement of Objections to Gazprom, Brussels, MEMO/15/4829, 22 April 2015, http://europa.eu/rapid/press-release_MEMO-15-4829_en.htm (last accessed 27 May 2018).

  79. 79.

    GATT Article III.9 and Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 133.

  80. 80.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, Tables 7 and 8 on pages 407–411.

  81. 81.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 1161.

  82. 82.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 136.

  83. 83.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 271.

  84. 84.

    Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, para 1147 and Table 28.

  85. 85.

    Mining under the UN Central Product Classification (CPC) 883: Manufacturing under CPC 8845 and energy distribution under CPC 887.

  86. 86.

    Russian Federation, Goods Schedule CLXV, Part V—Export Duties, WTMIN112A1-02 (22.08.2012) and Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70, WT/MIN(11)/2, 17 November 2011, paras 637–638; per analogy, Ukraine, Vietnam and Kazakhstan have also included such reference in their commitments.

  87. 87.

    Protocol on the Accession of the Republic of Kazakhstan, WT/L/957, 30 July 2015, Report of the Working Party on the Accession of Kazakhstan, WT/ACC/KAZ/93, 23 June 2015.

  88. 88.

    WTO, Overview of Kazakhstan’s Commitments, https://www.wto.org/english/news_e/news15_e/kazakhannex_e.pdf (last accessed 27 May 2018).

  89. 89.

    Report of the Working Party on the Accession of Kazakhstan, WT/ACC/KAZ/93, 23 June 2015, paras 87, 162, 163.

  90. 90.

    WTO, Overview of Kazakhstan’s Commitments, https://www.wto.org/english/news_e/news15_e/kazakhannex_e.pdf (last accessed 27 May 2018).

  91. 91.

    Report of the Working Party on the Accession of Kazakhstan, WT/ACC/KAZ/93, para 897.

  92. 92.

    The most recent draft of the Energy Charter Treaty, ‘Transit Protocol’ Doc No: TT87 22/01/2010 was dated 22 October 2010; Marhold (2015), pp. 389–435.

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Authors and Affiliations

  1. Tilburg Law and Economics Center (TILEC), Tilburg University, Tilburg, The Netherlands

    Anna Marhold

  2. Department of European, International and Comparative Law, Faculty of Law, University of Vienna, Vienna, Austria

    Friedl Weiss

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  1. Faculty of Law, Saarland University, Saarbrücken, Germany

    Marc Bungenberg

  2. Faculty of Law, University of Erlangen-Nuremberg, Erlangen, Germany

    Markus Krajewski

  3. School of Law, University of Glasgow, Glasgow, UK

    Christian J. Tams

  4. Competition and Regulation Institute, Leuphana University of Lüneburg, Lüneburg, Germany

    Jörg Philipp Terhechte

  5. Faculty of Law and Criminal Sciences, University of Lausanne, Lausanne, Switzerland

    Andreas R. Ziegler

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Marhold, A., Weiss, F. (2018). Energy and Fossil Fuels as a Topic of WTO Accession Protocols. In: Bungenberg, M., Krajewski, M., Tams, C.J., Terhechte, J.P., Ziegler, A.R. (eds) European Yearbook of International Economic Law 2018. European Yearbook of International Economic Law, vol 9. Springer, Cham. https://doi.org/10.1007/8165_2018_3

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