Review to: Robert Howse, Hélène Ruiz-Fabri, Geir Ulfstein, Michelle Q. Zang, (Eds.), The Legitimacy of International Trade Courts and Tribunals Cambridge University Press, 2018 (original) (raw)
The European Community and the International Trading System: A Judicial Approach
International Relations Journal, 2002
Abstract: The main focus of study in this paper is to explain why the World Trade Organization (WTO) and the various Agreements which form an integral part of the Agreement establishing the WTO raise problems and are challenges for the Court of Justice of the European Communities (ECJ). In section II, we will see that the EC's specific problems and challenges for the European Court of Justice are related to the EC's position in the WTO. In this sense, the opinion of Advocate General Tesauro regarding Hermes International v ...
Many important issues confronting WTO law - the capacity of regional trade agreements (‘RTAs’) to prevent a claim from being adjudicated before the WTO, the ability of a Member to hold another Member to a representation, and the extent to which WTO Panels and the Appellate Body can control the procedure of complaints - depend for their resolution almost entirely on the degree that rules of international law are applicable in WTO dispute settlement. Given the increasing proliferation of RTAs, the likelihood of WTO Panels having to deal with conflicting international obligations is increasing - indeed, it may be required in the impending US - Tuna/Dolphin (Mexico) dispute. This paper argues that a principled (if sophisticated) approach to international law in WTO dispute settlement is necessary to provide ‘security and predictability to the multilateral trading system’. This approach is based on recognizing that WTO Panels and the Appellate Body (‘WTO Tribunals’) have an inherent jurisdiction that allows them to apply select international law (outside the WTO Agreements) where three criteria are satisfied. Specifically: the application of international law must be necessary for the WTO Tribunal to properly discharge its function; the relevant international law must have no substantive content of its own; and the application of international law must not be inconsistent or incompatible with the provisions of the Dispute Settlement Understanding (‘DSU’) as well as with the objects and purposes of the covered Agreements. Given this framework, this paper examines several procedural and good-faith based principles of international law that may be relevant to WTO disputes, as well as the conceptual difficulties that they cause.
2021
FULL FILE IS AVAILABLE AT: https://papers.ssrn.com/sol3/papers.cfm?abstract\_id=3997336 Since the start of civilization people relied on different forms of trade for development purposes. Trade has been a defining feature of all civilizations, circulation of goods connects and integrates consumption and production. What changed with globalization is the drastic decrease of trade costs and the increase in available markets, in addition to transforming the entire world into a small village. Exchanges never stopped even in war periods or in pandemics . Yet, removal and reduction of barriers (whether tariffs or physical barriers) during the aftermath of the second world war brought new impetus in international trade. In parallel, relations entered in a phase where stepping up cooperation amongst very different partners and multilateralism, as always sadly only after crisis, were aimed at solving social dilemmas. Circulation of goods, new markets and new consumption patterns drove the economic reconstruction and propelled European integration. Trade is however one factor that enables and shapes economic growth. The history of the multilateral trading system is exemplary. Tariffs and Non-tariffs barriers to trade, since the Tokyo round, decreased at a fast pace and benefitted also developing countries. The amount of literature addressing the topic of international trade continues to grow on a yearly basis given the great interdependencies between the different countries that rely on trade for their economic growth. Indeed, ever since the first trade rules and organizations have been established, the international community has made great efforts every decade to update the existing rules, adopt new rules and address the new challenges emerging because of social, technological, and economic developments. In fact, one can even say that the international regulatory framework applicable to trade is perhaps the most successful set of binding and non-binding instruments that has ever been adopted given the great degree of states compliance with these rules, not to mention the existence of retaliatory measures that nations can take in case a state refuses to respect trade rules. In comparison with other global legal fields and emerging ones, international trade represents one of the few regimes there that states comply with, has an efficient international organization addressing this issue in the form of the World Trade Organization (WTO) and one of the most important dispute settlements systems that has ever been established where the decisions made are usually followed by the different nations that usually eliminate the non-complying measures adopted. Thus, the fact that a multilateral trade system has been established and that this system has been extremely efficient and effective in addressing topics related to international trade is an accomplishment in itself, given the failure of other global regulatory frameworks to reach similar results despite the importance of the issues addressed and in many instances the urgent need for actions. It is in this context that numerous scholarly articles have made comparative analysis attempting to figure out the magic equation or the secret for which the international trade system has been extraordinarily successful. As such, numerous articles have made comparative analysis between for instance international trade law and international climate change law or other legal fields. Nonetheless, this does not mean that this system did not face existential challenges in the past or even currently, where scholars and experts have been criticizing the system since its establishment for various reasons. Civil society organizations have also constantly voiced their concerns when it comes to the adoption of rules favoring trade on the expense of Non-Trade Concerns (NTCs). These concerns include for instance environmental matters, sustainable development, the use of exhaustible natural resources, public health issues and so on , where even specific provisions within the multilateral trade system dealt with these issues it was very often implemented in a very narrow way, such as Article XX of the General Agreement on Tariffs and Trade (GATT) providing general exceptions, according to which states can restrict trade in specific situations. Given these existing criticisms and challenges, the international trade regime had to develop to tackle some of these issues. In particular, there was a need to acknowledge the existence of NTCs that are equally important to international trade and must be not only taken into consideration, but protected with a more consistent application of the general exception. In fact, throughout the different decades, the case law of the dispute settlement system has gradually developed from ignoring such concerns, to acknowledging their existence and to finally taking them into account when in several instances they played an important role in deciding whether trade measures restricting trade should be adopted or not. Moreover, taking such concerns into account has also opened the door to examining the interplay between the multilateral trade regime and other legal fields such as international investment law, intellectual property rights regime and international climate change law in the general context of the fragmentation of international law. Indeed, all these regimes are interconnected given that in many instances they address similar matters, but from different aspects where the rules may clash and where different international tribunals may support different legal fields depending on the ideology and purpose of the court. This is why, numerous articles have been written on these two phenomenon where some scholars were not very much optimistic about the future developments while others attempted to provide recommendations and solutions on how to address the existing challenges, given that the fragmentation of international law is not going away any time soon while same challenges are increasingly being dealt with through different regulatory frameworks requiring cooperation and communication among them. These problems represent one of the many challenges that the multilateral trade system is facing this century where the efficient functioning of the regime requires clear solutions to these problems. Keywords: Globalization, Global Values, International Trade Law, WTO, Business, Human Rights, Non-Trade Values, International Labour Law, Climate Change, Sustainable Development, Intellectual Property, Investment Law, Arbitration, Foreign Direct Investment, Common Commercial Policy FULL FILE IS AVAILABLE AT: https://papers.ssrn.com/sol3/papers.cfm?abstract\_id=3997336
Settlement of Disputes Within the World Trade Organisation: A Guide to the Jurisprudence
The World Economy, 2001
T HE World Trade Organisation (WTO) 1 forms the centrepiece of intergovernmental trade relationships. It has replaced and expanded upon the intergovernmental rights and obligations that had previously been established under the General Agreement on Tariffs and Trade (GATT). 2 From the legal perspective, the GATT/WTO system is both a significant achievement and an invaluable means to analyse the nature and effectiveness of international law and international legal institutions. In any sphere of international relations, the central debate for lawyers is to what extent rules and legalist attitudes may assist in furthering the goals of an international regime. Where trade regimes are concerned, strength may be drawn from the knowledge that legal rules and institutions are necessary in any domestic market-based economic system. Such laws create and protect property rights and voluntary exchange. These are the building blocks of commerce. They are supported by adjudicatory systems and enforcement mechanisms. These aim to promote compliance with obligations and aid in the resolution of legitimate disputes where they inevitably arise. While these are important elements of domestic systems, there are problems and challenges in determining the extent to which they can and should be