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An Analysis of Pascal Lamy’s Proposal on Collective Preferences
1 George Washington University Law School, 2000 H Street, Washington, DC 20052. Email: scharnovitz{at}law.gwu.edu.
In September 2004, then-European Commissioner for Trade Pascal Lamy released his study on the political challenge of ‘collective preferences’ for the world trading system. Collective preferences cause a problem for the WTO if the resulting measure violates WTO rules and yet the measure is too popular in the regulating country for the government to withdraw it. The paradigmatic example is EC – Hormones in which the European Commission could not comply because of contrary popular and parliamentary opinion. To address such circumstances, Lamy proposes the negotiation of a new WTO safeguard that would permit governments to retain strongly-supported measures provided that compensation is paid. This article analyzes Lamy’s paper and discusses the many challenges to validating a collective preference. The article posits that whether a new safeguard is needed depends in part on the leeway that WTO rules provide for legitimate domestic measures. The article concludes that while Lamy’s purpose may be worthy, his proposal has several weaknesses, and enacting it in the WTO is highly unlikely.