1. MGIMO/ESI Moscow, December 1, 2016
METHODOLOGICAL SEMINAR „Effects of the WTO Agreements in the EU and in the Eurasian Economic Union“
MGIMO/ESI Moscow, December 1, 2016
© Friedl Weiss 2016

2. The status of export restrictions in WTO law: Implications of „China-Raw Materials“ for trade in natural resources and energy products
em. Univ-Prof.Dr.Friedl Weiss, LL.M. Department of European, International and Comparative Law, Faculty of Law, University of Vienna
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3. Overview Introduction Export Restrictions Summary Findings and Rulings
ITO Havana Charter – GATT – WTO
Key Findings in „China- Raw Materials“
Legal Assessment
Implications of „China-Raw Materials“
Concluding Remarks
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4. I. Introduction
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5. I. Introduction
In 2012, the Appellate Body (AB) of the WTO ruled on complaints of the USA, EU and Mexico that China‘s export restrictions and export duties on 9 raw materials were not consistent with WTO rules. On 8 November 2016, the Dispute Settlement Body (DSB) again established panels requested by the EU and USA concerning alleged export duties, export quotas, and quota administration issues involving raw materials (including antinomy, chromium, cobalt, copper, graphite, indium, lead, magnesium, talc, tantalum, and tin).
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6. II. Export Restrictions
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7. II. Export Restrictions
fastest growing type of trade restrictions
made up ~ 27% of all new trade restrictive measures in
ambivalent  particularly controversial!
Pros 
Cons ―
export restrictions on natural resources and foodstuffs discussed in Doha Round negotiations on Non-Agricultural Market Access (NAMA) and agriculture
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8. III. Summary Findings and Rulings
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9. III. Summary Findings and Rulings
Appellate Body
WTO members must ensure even-handed distribution of natural resources they extract or harvest amongst WTO Members
China‘s Accession Protocol  China was not permitted to invoke any public policy justification (e.g. environmental protection)
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10. III. Summary Findings and Rulings
Russia
Accession Protocol: almost no „WTO-plus“ commitments in the energy sector!  Gazprom able to apply export taxes when exporting raw materials and fuels
Disparity among WTO Members remains problematic,
fuelling distrust in the system.
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11. IV. Havana Charter – GATT – WTO
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12. IV. Havana Charter – GATT – WTO
ITO contained a chapter on „Intergovernmental Commodity Agreements“, including a definition of raw materials
Any product of farm, forest or fishery or any mineral,
in its natural form or which has undergone processing customarily required for
its marketing in substantial volume in international trade.
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13. IV. Havana Charter – GATT – WTO
GATT does not contain ist own rules on trade with raw materials
energy trade was not contemplated in the late 1940s
but prohibition of QURs, and of fees/ formalities connected with importation and exportation
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14. IV. Havana Charter – GATT – WTO
WTO: ever growing „to do list“ with respect to energy trade – absent any specific inclusion of energy
OPEC: production quotas as main instrument for stabilisation of oil prices, in combination with subsidies for some petroleum products
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15. V. Key Findings in „China-Raw Materials“
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16. V. Key Findings in „China-Raw Materials“
3 sets of important findings
guidance on how exceptions to GATT prohibition of export restrictions relate to general principles of International Law
clarification of the relationship between China‘s Accession Protocol and the GATT
confirmation that the complainants could challenge measures by China
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17. V. Key Findings in „China-Raw Materials“
Legal Findings by Appellate Body:
the challenged export restrictions affected legal interests protected by WTO law
lacking justification, according to standards of WTO law
all 5 categories of export duties were found to be WTO-illegal
China had not demonstrated that the application of export quotas is justified.
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18. V. Key Findings in „China-Raw Materials“
export quotas were likewise found to breach Art XI:1 GATT; those quotas could not be characterized as conservation measures as they would have to satisfy 2 conditions:
the export restriction would have to be applied jointly with restrictions on domestic production and consumption, and,
the purpose of the export restriction would have to be made effective in conjunction with restrictions on domestic production or consumption.
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19. VI. Legal Assessment
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20. VI. Legal Assessment
narrow interpretation given to the term „critical shortage“ in Art XI:2 GATT
sensible interpretation given to the „conservation“ exception in Art XX (g)
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21. VII. Implications of „China-Raw Materials“
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22. VII. Implications of „China-Raw Materials“
Appellate Body‘s ruling has potentially far reaching implications in a world of uneven distribution of natural resources
Guiding principle: WTO Members are free in their decision whether and to what extent to harvest their natural resources – but once they have decided to do so, they must make those resources available to other WTO Members as well – except in the case of a temporary critical shortage
Decisions of OPEC countries: WTO Members, who cut production of oil in order to lift market prices, are not affected by the ruling of China-Raw Materials
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23. VIII. Concluding Remarks
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24. Thank you for your attention!
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