Who Gets to Be In the Room? Manipulating Participation in WTO Disputes

2014 ◽  
Vol 68 (3) ◽  
pp. 663-699 ◽  
Author(s):  
Leslie Johns ◽  
Krzysztof J. Pelc
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Formal Model ◽  
Empirical Support ◽  
Third Parties ◽  
Third Party ◽  
Wto Dispute Settlement ◽  
The Cost

AbstractThird parties complicate World Trade Organization (WTO) dispute settlement by adding voices and issues to a dispute. However, complainants can limit third parties by filing cases under Article XXIII of the General Agreement on Tariffs and Trade (GATT), rather than Article XXII. We argue that third parties create “insurance” by lowering the benefit of winning and the cost of losing a dispute. We construct a formal model in which third parties make settlement less likely. The weaker the complainant's case, the more likely the complainant is to promote third party participation and to settle. Article XXII cases are therefore more likely to settle, controlling for the realized number of third parties, and a complainant who files under Article XXIII is more likely to win a ruling and less likely to see that ruling appealed by the defendant. We provide empirical support using WTO disputes from 1995 to 2011.

scholarly journals Measuring the Cost of Privacy: A Look at the Distributional Effects of Private Bargaining

2015 ◽  
Vol 46 (4) ◽  
pp. 861-889 ◽  
Author(s):  
Jeffrey Kucik ◽  
Krzysztof J. Pelc
Keyword(s):  
International Organizations ◽  
World Trade ◽  
Policy Making ◽  
Dispute Settlement ◽  
Trade Flows ◽  
Third Party ◽  
Wto Dispute Settlement ◽  
The World ◽  
The Cost ◽  
Domestic Law

Transparency is one of the most contested aspects of international organizations. While observers frequently call for greater oversight of policy making, evidence suggests that settlement between states is more likely when negotiations are conducted behind closed doors. The World Trade Organization’s (WTO) legal body provides a useful illustration of these competing perspectives. As in many courts, WTO dispute settlement is designed explicitly to facilitate settlement throughprivateconsultations. However, this study argues that the privacy of negotiations creates opportunities for states to strike deals that disadvantage others. Looking at product-level trade flows from all disputes between 1995 and 2011, it finds that private (early) settlements lead to discriminatory trade outcomes – complainant countries gain disproportionately more than the rest of the membership. When the facts of a case are made known through a ruling, these disproportional gains disappear entirely. The article also finds that third-party participation – commonly criticized for making settlement less likely – significantly reduces disparities in post-dispute trade. It then draws parallels to domestic law and concludes with a set of policy prescriptions.

Three's a Crowd: Third Parties and WTO Dispute Settlement

2006 ◽  
Vol 58 (3) ◽  
pp. 446-477 ◽  
Author(s):  
Marc L. Busch ◽  
Eric Reinhardt
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Selection Effect ◽  
Third Parties ◽  
Third Party ◽  
Data Set ◽  
Wto Dispute Settlement ◽  
Early Settlement ◽  
The World ◽  
Party Support

Disputes filed at the World Trade Organization (WTO) are attracting a growing number of third parties. Most observers argue that their participation influences the institution's rulings. The authors argue that third parties undermine pretrial negotiations; their influence on rulings is conditioned by this selection effect. They test their hypotheses, along with the conventional wisdom, using a data set of WTO disputes initiated through 2002. Consistent with the authors' argument, they find that third-party participationlowersthe prospects for early settlement. Controlling for this selection effect, the evidence also suggests that third-party support increases the chances of a legal victory at the WTO.

scholarly journals Apparent Dichotomies, Covert Similarities: A Response to Joost Pauwelyn

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 294-301
Author(s):  
Catherine A. Rogers
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Decision Makers ◽  
Wto Dispute Settlement ◽  
Trade And Investment ◽  
Legal Training

In his thoughtful article, Joost Pauwelyn poses a perplexing question: How can it be that trade and investment are converging in their substantive “legal orders,” but diverging in terms of perceived legitimacy? Investor-State Dispute Settlement (ISDS), he argues, is in a “state of crisis” whereas World Trade Organization (WTO) dispute settlement is generally regarded as “successful.” Pauwelyn’s provocative and counter-intuitive explanation for this paradox focuses on the apparent differences between the pool of decision-makers in each regime: WTO disputes are resolved by nameless, faceless, panel-inexperienced bureaucrats who often lack legal training, whereas “investment arbitrators are typically high-powered, elite jurists” with more expertise and experience than their WTO counterparts.

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.

The Aircraft Cases: Canada and Brazil

2002 ◽  
Vol 39 ◽  
pp. 387-431
Author(s):  
Rambod Behboodi
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Export Performance ◽  
Differential Treatment ◽  
Aircraft Industry ◽  
Wto Dispute Settlement ◽  
Export Subsidies ◽  
The World ◽  
First Time

SummaryThe disputes between Canada and Brazil over subsidies to the regional aircraft industry were the first cases under Part II (covering prohibited subsidies) of the Agreement on Subsidies and Countervailing Duties (SCM Agreement) of the World Trade Organization (WTO). The PROEX case, involved the scope of the concept of “special and differential treatment” under Article 27 of the SCM Agreement, and the interpretation of the first paragraph of Item (k) of the Illustrative List of Export Subsidies as set out in Annex I to the SCM Agreement. The Canada — Aircraft case involved, for the first time, Article 1 of the SCM Agreement, which defines what practices constitute a subsidy, and Article 3, which prohibits subsidies “contingent, in law or in fact, upon export performance.” The case also dealt with important procedural issues relating to WTO dispute settlement. The author reviews critically these decisions with respect to both substantive and procedural issues.

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.

scholarly journals Ask for the Moon, Settle for the Stars: What is a Reasonable Period to Comply with WTO Awards?

2017 ◽  
Vol 16 (2) ◽  
pp. 395-425 ◽  
Author(s):  
PETROS C. MAVROIDIS ◽  
NIALL MEAGHER ◽  
THOMAS J. PRUSA ◽  
TATIANA YANGUAS
Keyword(s):  
World Trade Organization ◽  
Legal System ◽  
World Trade ◽  
Dispute Settlement ◽  
The Moon ◽  
Wto Dispute Settlement ◽  
The World ◽  
The Difference ◽  
Settlement Of Disputes

AbstractThe World Trade Organization (WTO) dispute settlement process allows a defending Member a ‘reasonable period of time’ (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest possible period under the domestic legal system of the defending Member to make the changes necessary to comply with the WTO rulings. Our research confirms that in practice Arbitrators have determined this period by ‘splitting the difference’ approximately between the periods suggested by the complaining and defending Member. In addition, the process appears to reward defending Members that request an RPT that exceeds the 15-month guideline in Article 21.3(c).

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.

European Communities restrictions on imports of beef treated with hormones—nontariff trade barriers—control of food additives—scientific basis for restrictions—WTO dispute settlement mechanisms—scope of review

1998 ◽  
Vol 92 (4) ◽  
pp. 755-759 ◽  
Author(s):  
Bernard H. Oxman ◽  
David A. Wirth
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Food Additives ◽  
Meat Products ◽  
The United States ◽  
Scientific Basis ◽  
Safety Measures ◽  
Appellate Body ◽  
Wto Dispute Settlement

European Communities—Measures Concerning Meat and Meat Products. WTO Doc. WT/DS26/AB/R & WT/DS48/AB/R.World Trade Organization Appellate Body, January 16, 1998.This report of the Appellate Body of the World Trade Organization (WTO) is both the most recent development in a long-running trade battle between the United States and the European Communities and the first dispute to be addressed under a new Uruguay Round agreement concerning food safety measures.

scholarly journals Peculiarities of retaliation in WTO dispute settlement

2002 ◽  
Vol 1 (2) ◽  
pp. 123-134 ◽  
Author(s):  
KYM ANDERSON
Keyword(s):  
World Trade Organization ◽  
Dispute Resolution ◽  
World Trade ◽  
Dispute Settlement ◽  
Wto Dispute Settlement ◽  
The World ◽  
Trade Retaliation ◽  
Trade Measure

The dispute resolution procedures of the World Trade Organization allow sanctions to be imposed when a country is unwilling to bring a WTO-inconsistent trade measure into conformity. Apart from the fact that the procedure for triggering the retaliation process has ambiguities that need to be removed, the retaliation itself has some undesirable economic features. This paper looks at why compensation is not preferred to retaliation and then examines five economic features of the temporary trade retaliation that WTO may permit under certain conditions. Both efficiency and equity concerns are raised. The paper concludes with some suggestions for reforming this part of WTO dispute resolution during the review of the Dispute Settlement Understanding that is due to be completed by May 2003.

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