United States—Tax Treatment for ‘‘Foreign Sales Corporations’’ Recourse to Arbitration by the United States Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement (WT/DS108/ARB): A Comment
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Description
This chapter discusses the decision by the arbitrator on suspension of concessions (‘‘retaliation’’) in the dispute between the US and the EU legislation. By way of background, the first part of the chapter (section 2) regarding the tax treatment of offshore corporate income under US describes the operation of the US scheme, including as revised after the first round of WTO rulings. We observe that the arbitrators have adopted an unconventional approach with respect to the notion of countermeasures, which emphasizes the incentive to induce compliance while largely jettisoning proportionality between the countermeasure and the injury suffered by the wronged state as a meaningful normative constraint. Section 4 considers this approach from the perspective of established principles of international law and highlights a number of important shortcomings. Section 5 takes this approach for granted and asks whether countermeasures could actually be relied upon in order to induce compliance. We conclude with respect to export subsidies, the incentives of complainants are such that under-enforcement can often be expected. The prospect of inducing compliance through countermeasures thus appears to be somewhat poor and at odds with established principles of international law.
Source Publication
The WTO Case Law of 2002: The American Law Institute Reporters' Studies
Source Editors/Authors
Henrik Horn, Petros C. Mavroidis
Publication Date
2005
Recommended Citation
Howse, Robert L. and Neven, Damien J., "United States—Tax Treatment for ‘‘Foreign Sales Corporations’’ Recourse to Arbitration by the United States Under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement (WT/DS108/ARB): A Comment" (2005). Faculty Chapters. 873.
https://gretchen.law.nyu.edu/fac-chapt/873
