Is this the End?: The WTO Case Law of 2019 (original) (raw)
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2021
In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.
Journal of World Trade, 2013
This article provides a comprehensive overview of the use of WorldTrade Organization (WTO) rules and case law by other dispute settlement mechanisms (DSMs) in international law. Our findings show that DSMs frequently refer to WTO rules and case law not only on matters of procedure but also on various substantive aspects of trade law and general international law.The 150 identified references vary in their quality and importance for the rationale of the DSM. They range from a footnote en passant to being at the core of the solution for a particular legal problem that the adjudicator or arbitrator faces.We cluster our findings into four major categories of circumstances under which other DSMs deem it appropriate to cite the WTO (factual determinations, procedural aspects, general principles of international law or the rules on treaty interpretation, and substantive rules).A more difficult task has been to draw tentative conclusions as to the reasons that motivate DSMs to look specifically intoWTO rules and case law. In most instances, this is due to the fact that the terms or their context in a given applicable law of a regional trade mechanism resemble those of theWTO disciplines. However, the use of the WTO precedent for purposes of procedure and clarification of general principles of international law or the rules on treaty interpretation show a broader influence of theWTO on international dispute settlement.
2016
In this paper, we provide some descriptive statistics of the first twenty years of the WTO (World Trade Organization) dispute settlement that we have extracted from the data set that we have put together, and made publicly available. The statistical information that we present here is divided into three thematic units: the statutory and de facto duration of each stage of the process, paying particular attention to the eventual conclusion of litigation; the identity and participation in the process of the various institutional players, that is, not only complainants and defendants, but also third parties, as well as the WTO judges (panelists and Appellate Body members); and, finally, information regarding the subject-matter of various disputes, regarding the frequency with which claims regarding consistency of measures with the covered agreements (but also, at a more disaggregate level, e.g., specific provisions) have been raised. We call our work “descriptive statistics”, because, i...
Reviewing Appellate Review in the WTO Dispute Settlement System
As the World Trade Organization heads towards the Hong Kong Ministerial Conference in December 2005 and the Appellate Body celebrates its 10 th anniversary, it is worth reflecting on the proposals advanced in the ongoing review of the Dispute Settlement Understanding that relate specifically to WTO appeals. This commentary considers several key proposals that fall within this category, concerning in particular the number and term of Appellate Body Members, the anonymity of Appellate Body reports, the absence of interim reports at the appellate stage, and the possibility of introducing a formal remand mechanism. These proposals raise some issues that are common to other legal systems and for which different systems have adopted different solutions. An examination of the various approaches in certain domestic and international contexts may be useful in evaluating individual proposals within the WTO, while keeping in mind the distinctive features of WTO appellate review and the broader background of the WTO dispute settlement system.]
To AB or Not to AB? Dispute Settlement in WTO Reform
Journal of International Economic Law, 2020
Recent debates on the operation of the World Trade Organization’s dispute resolution mechanism have focused primarily on the appellate body. We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of depoliticized conflict resolution that is reflected in the negative consensus rule for the adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to World Trade Organization working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the appellate body crisis. Effective, coherent, and consistent World Trade Organization dispute resolution need not include an appellate body. An appropriately redesigned single-stage process can serve just as well, if not better.
The WTO Dispute Settlement Understanding Review: What Future for the Appellate Stage?
Civil Society, International Courts and Compliance Bodies, 2005
The negotiations on the review of and amendments to the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (Marrakesh, 15 April 1994; hereinafter DSU), 1 which commenced at the 2001 Doha Conference, have now reached a crucial point. 2 Initially based on proposals made by individual Members or groups of Members and, at a later stage, on the Chairman's Text of 2003, the negotiations are now evolving on the basis of the July 2008 Legal Draft. 3 This letter covers many issues, such as third party rights, panel composition, remand authority, mutually agreed solutions, strictly confidential information, sequencing, post-retaliation, transparency and amicus curiae briefs, timeframes, developing country interests, including special and differential treatment, flexibility and Member control and effective compliance.