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Emissions Trading Schemes under International Economic Law$
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James Munro

Print publication date: 2018

Print ISBN-13: 9780198828709

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780198828709.001.0001

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International Trade in Carbon Units under GATT 1994 and Free Trade Agreements

International Trade in Carbon Units under GATT 1994 and Free Trade Agreements

Chapter:
(p.45) 4 International Trade in Carbon Units under GATT 1994 and Free Trade Agreements
Source:
Emissions Trading Schemes under International Economic Law
Author(s):

James Munro

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198828709.003.0004

Chapter 4 examines whether carbon units qualify as ‘goods’/‘products’ under GATT 1994 and free trade agreements covering goods. Despite complexities, the analysis of Chapter 4 concludes that, on balance, the better view is that ‘carbon units’ do qualify as ‘products’ and ‘goods’ under GATT 1994 and free trade agreements covering goods. This is because they can be possessed, stored, traded across borders, and hold economic value. The most challenging aspect is the lack of obvious ‘production’ involved in some classes of units. However, since some units are clearly ‘produced’, and since all units are fungible and are, to some degree, in a competitive market relationship with one another, regardless of how they are created, it would be anomalous if only some classes of carbon units were covered. If, however, the Appellate Body of the World Trade Organization were to determine—contrary to existing case law—that tangibility is a threshold requirement of ‘goods’/‘products’, it is clear that no carbon units would qualify.

Keywords:   meaning of ‘products’ under GATT 1994, meaning of ‘goods’ under GATT 1994, tangibility, property, carbon units, intangible rights, production, human effort

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