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The Australian Market Access Conditions and their Compatibility with World Trade Law

by Dr. Dominic Thiele, LL.M

The World Trade Organization (WTO) carries out a central function for reducing trade barriers on an international level. Thus, in matters of progressive globalization, the WTO certainly epitomizes a key role. By entering the WTO Treaties, all Member States of the WTO have committed to accept a broad range of international law obligations in regards to the configuration of their respective national market access. However, in practice, obligations of the WTO framework are not always fully observed. The legal instruments of World Trade Law are laid down in the WTO Agreements, comprising more than 22,000 pages. Due to their complexity and abstractness, even experienced jurists have strong difficulties to properly apply and interpret these legal instruments. The evaluation whether Member States perform in conformity with WTO Law constitutes a concrete application of international law that comes along with interdisciplinary interwoven problems.

This research provides a comprehensive outline of the Australian market access from the perspective of WTO Law. It is targeted to make a contribution for a better understanding of World Trade Law. In this context, the dissertation forms an exemplary analysis in which the market access regulation of a WTO Member State – Australia – is scrutinized in relation to WTO Law conformity. Australia is a very suitable country for such an exemplary analysis for several reasons. First, it has gained negative experiences with strong protectionism in its economic-political history. Second, since in the late 80’s its government has realized the negative economic impact of protectionism on the national economic performance, Australia is highly endeavoured to reduce its trade barriers. This has led to a situation in which the WTO problems of Australia are reduced to a manageable frame on the one hand. On the other hand, however, some rudiments of Australia’s protective trade policy still exist and constitute respective need for discussion. Finally, as a former colony of the UK and because of its specific geographic situation, Australia is subject to certain temptations in regard to WTO Law infringements.

The author begins his analysis by describing the basic elements of the Australian market access conditions. In a second step, the World Trade topics of customs law, subventions, antidumping, public procurement, services, protection of intellectual property and regional trade agreements are respectively reflected by outlining the WTO framework first and then scrutinizing Australia’s practice in each field. In the third part of the analysis, the author explicitly analyzes selected issues that generate particular problems in the context of WTO Law: The Australian luxury car tax (factually affecting only import products), restrictions on direct investments of foreigners, sanitary and phytosanitary import restrictions, and the regulation concerning accreditation and labelling of genetic modified organisms are such issues, creating legal problems from the perspective of WTO Law and in part already having led to pending WTO penalty proceedings.

The author’s findings that follow from his analysis are: From today’s perspective, Australia is a comparatively liberal trade partner, performing in most fields in conformity with WTO Law. However, few areas still exist in which Australia could amend its performance. These areas are typical problems in the context of WTO Law and are also to be discussed for other WTO Member States; the respective findings of the author can be transferred to comparable trade instruments of other WTO Members.

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