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Chapter 8 explains a process that is unique to the multilateral safeguard mechanism and that is sometimes misunderstood: the process of rebalancing. The chapter examines the conceptual questions that arise with the general notion of rebalancing as relating to a negotiation-derived consequence. It notes that the obligation of maintaining the balance of concessions informs the whole rebalancing exercise, in particular the consultations under Articles 8.1 and 12.3, the consideration of the means of compensation, and the notion of the withdrawal of substantially equivalent concessions and other obligations under the GATT 1994. The Chapter also explains the temporary suspension of the right to take rebalancing action under Article 8.2, and the natural tension that exists between the mandates of this provision and the conduct of dispute settlement proceedings under the DSU.
This chapter discusses the special problems that pertain to penal paternalism. The author's theory of criminalization consists in six constraints that must be satisfied before a penal law, any penal law, may be enacted and enforced. First, all criminal laws must be designed to prevent harm. Second, the conduct proscribed by the criminal law must be wrongful. Third, persons must deserve punishment for violating the criminal law. Fourth, the state must have a substantial interest in proscribing the conduct banned by a criminal law. Fifth, the law must actually promote that state interest. Sixth, the law must be no more extensive than necessary to accomplish its purpose. The chapter describes several problems in efforts to show that a given instance of penal paternalism satisfies them. The problem facing paternalists is to decide whether the wrongs involved in failures to take care of oneself are public or private.
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