scholarly journals The Impending Dejudicialization of the WTO Dispute Settlement System?

2018 ◽  
Vol 112 ◽  
pp. 316-321
Author(s):  
Richard H. Steinberg
Keyword(s):  
United States ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

The Appellate Body (AB) of the World Trade Organization (WTO) is facing a crisis. Appointment of AB members requires a consensus of the Dispute Settlement Body (comprised of all WTO members), and the United States has been blocking a consensus on further appointments since Donald J. Trump became the president. Without new appointments, the ranks of the AB have been diminishing as AB members’ terms have been expiring. If this continues (and many expect the United States to continue blocking a consensus on appointments), then in December 2019, through attrition, the number of AB members will fall below the threshold necessary to render decisions, at which point the AB will cease to function.

scholarly journals Addressing (or Not) Widespread Concerns with the WTO

2018 ◽  
Vol 112 ◽  
pp. 321-322
Author(s):  
Terence P. Stewart
Keyword(s):  
United States ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System ◽  
Advisory Opinions

The United States for at least sixteen years has had serious concerns with whether the World Trade Organization (WTO) dispute settlement system was operating according to the terms upon which WTO Members had agreed. While the United States has been a major supporter of the WTO system and the dispute settlement system generally, concerns about sovereignty and the proper functioning of the system have been important since at least 2002, reflected in U.S. legislation and actions by three administrations. Concerns have existed on (1) whether panels and the Appellate Body have honored the limitations contained in Articles 3.2 and 19.2 of the Dispute Settlement Understanding (DSU) not to create rights or obligations; (2) the issuance of advisory opinions on issues not raised or not necessary to the resolution of the dispute; (3) actions of the Appellate Body that permit deviation from the DSU without affirmative authorization by the Dispute Settlement Body (DSB); and, former Appellate Body members continuing to be involved in cases after their term has expired (failure to complete appeals in the DSU required maximum time of ninety days). These are all issues that have concerned the United States for years but also have been raised by other members.

scholarly journals Discontinuity in the Internalization of the World Trade Organization Rules: Assessing the Democratic Deficit Critique Against the World Trade Organization Dispute Settlement System

2009 ◽  
Vol 46 (4) ◽  
pp. 1039
Author(s):  
Yuka Fukunaga
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Democratic Deficit ◽  
Settlement System ◽  
Member States ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

International institutions are often criticized for their democratic deficit. Among these institutions, the World Trade Organization (WTO) dispute settlement system is most frequently targeted. This article focuses on the strength of this critique and aims to refute its factual premise through the examination of several Panel and Appellate Body decisions. The author also argues that the WTO dispute settlement system deliberately leaves a certain degree of discontinuity between members’ domestic legal orders and the WTO Agreement, such that the system pays a degree of deference to member states and allows substantial discretion in the process of internalizing the rules of the WTO Agreement within domestic legal orders. Finally, the author concludes that this discontinuity remains strong, and serves to enhance the democratic autonomy of member states instead of defeating it.

Substance and Style—How the WTO Adjudicators Legitimize their Decisions

2018 ◽  
Author(s):  
Christiane Gerstetter
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Judicial Decision ◽  
Settlement System ◽  
Member States ◽  
Judicial Decisions ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

This chapter analyses how the World Trade Organization (WTO) dispute settlement bodies legitimize their decisions and by implication also the WTO Dispute Settlement System as well as the WTO as an institution more broadly. The author argues there are two relevant dimensions for understanding how judges legitimize judicial decisions: the substantive outcomes of cases, that is who wins and loses and what interpretations are adopted, and the way a judicial decision is justified. She concludes that the WTO dispute settlement bodies act strategically in order to win the acceptance of the member states, and ultimately legitimize this dispute settlement system as a judicial entity.

Legitimating Behind the Smoke Screen in the Battle Over Clove Cigarettes

2019 ◽  
pp. 127-160
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

Recent years have confronted the World Trade Organization (WTO) Dispute Settlement System (DSS) with an intense wave of complex linkage disputes. US-Clove Cigarettes, which stands at the centre of this chapter, serves as the second case study in the investigation into the DSS’s goal-attainment endeavours in this category of WTO disputes. The chapter begins with a review of several jurisprudential milestones leading from the early US-Shrimp, examined in Chapter 5, to the more recent US-Clove Cigarettes, examined here, with a view to portraying the legitimation continuum of which the latter dispute forms a part. The chapter then discusses the intricate legitimacy setting in which US-Clove Cigarettes unfolded and, through a close goal-oriented analysis, shows how the intensified legitimacy concerns aroused shaped the goals pursued by the DSS and the judicial choices made towards their achievement. The chapter concludes by linking the goal-attainment efforts identified to the broader DSS goal-based effectiveness framework advanced in the book.

scholarly journals U.S. Refusal to Appoint Members Renders WTO Appellate Body Unable to Hear New Appeals

2020 ◽  
Vol 114 (3) ◽  
pp. 518-525
Keyword(s):  
United States ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Appellate Body Report ◽  
Appellate Body ◽  
The World ◽  
Bona Fide ◽  
Wto Appellate Body

Over the last few years, the United States has been pressuring the World Trade Organization (WTO) to reform the Appellate Body by refusing proposals to fill vacancies. On December 10, 2019, the terms of two Appellate Body members expired, leaving one member left for the seven-member body. This has brought new appeals to a standstill, as an appeal from a panel established by the Dispute Settlement Body must be heard by three Appellate Body members. In February of 2020, the United States elaborated on its complaints about the Appellate Body in a report published by the Office of the United States Trade Representative. In the spring of 2020, in response to the continued U.S. resistance to filling vacancies on the Appellate Body, a group of WTO members established an interim arrangement to handle appeals through arbitration. Also in the spring of 2020, the United States described as invalid a recent Appellate Body report regarding a dispute between Canada and the United States, asserting that none of the three persons who issued the report were in fact bona fide Appellate Body members.

scholarly journals United States Continues to Block New Appellate Body Members for the World Trade Organization, Risking the Collapse of the Appellate Process

2019 ◽  
Vol 113 (4) ◽  
pp. 822-831 ◽  
Keyword(s):  
United States ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Appellate Body ◽  
Selection Processes ◽  
The World ◽  
Wto Appellate Body

With only three remaining members of what is supposed to be a seven-member body, the World Trade Organization's (WTO) Appellate Body may soon cease to function. Since 2016, the United States has blocked the reappointment of Appellate Body members and rejected over a dozen proposals to launch selection processes that could fill the remaining vacancies. As a lead reason for these blocks, the United States has cited concerns about the practice whereby members whose terms have expired continue to serve on appeals to which they were previously appointed. On December 10, 2019, the terms of two Appellate Body members will expire, leaving only one member remaining. Because the WTO's dispute settlement process requires three Appellate Body members for each appeal, WTO members will be unable to make any new appeals by this year's end unless a solution emerges to the current impasse.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

1999 ◽  
Vol 48 (1) ◽  
pp. 199-206 ◽  
Author(s):  
Asif H. Qureshi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Market Access ◽  
The United States ◽  
Consultation Process ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Wto Appellate Body ◽  
Dispute Settlement System

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

Conclusion

2019 ◽  
pp. 312-332
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
Comparative Analysis ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Unintended Consequences ◽  
Institutional Changes ◽  
Wto Dispute Settlement ◽  
The World ◽  
International Adjudication ◽  
Dispute Settlement System

The present chapter concludes the work. It sums up the key findings of the study while discussing the results emerging from a comparative analysis of the three categories of disputes examined throughout the book. The chapter then revisits the central arguments put forth in the book and articulates the lessons to be learned for the study of the goals, operation, and effectiveness of the World Trade Organization (WTO) Dispute Settlement System (DSS), and of international courts more broadly. It also discusses some of the insights to be offered with respect to possible institutional changes or reforms of the WTO DSS, with a view to ensuring the system’s future effectiveness. The chapter closes with several observations that go beyond effectiveness, pertaining to the costs and unintended consequences attendant on more effective and empowered international adjudication.

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