The WTO Bananas Decision: Cutting Through the Thicket

1998 ◽  
Vol 11 (2) ◽  
pp. 201-227 ◽  
Author(s):  
Bruce R. Hirsh
Keyword(s):  
Dispute Settlement ◽  
Trade In Services ◽  
Allocation System ◽  
Goods And Services ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Quota Allocation ◽  
The Eu

The Bananas decision demonstrated that WTO dispute settlement panels and the Appellate Body are capable of effectively and clearly analyzing whether extremely complex measures are consistent with WTO rules. The trade-liberalizing decision established the General Agreement on Trade in Services (GATS) as a meaningful constraint on discriminatory measures with an impact on both goods and services and clarified the nature of the GATS Most-Favoured Nation (MFN) obligation. The decision also severely constrained the ability of the EU to justify non-tariff discriminatory measures such as the quota allocation system at issue in Bananas based on the Lomé waiver.

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

scholarly journals The Relative Success of WTO Dispute Settlement and What Planet Would the EU Investment Court System Be On? A Rejoinder to AJIL Unbound Comments

AJIL Unbound ◽  
2015 ◽  
Vol 109 ◽  
pp. 316-318
Author(s):  
Joost Pauwelyn
Keyword(s):  
World Trade ◽  
Public Perception ◽  
Dispute Settlement ◽  
Decision Makers ◽  
The Other ◽  
Court System ◽  
Wto Dispute Settlement ◽  
The Many ◽  
Better Than ◽  
The Eu

I am extremely grateful, and humbled, by the wealth of comments received on my AJIL article through this AJIL Unbound Symposium. One of the many points I take away from these reactions is, indeed, that my analysis offers a snapshot and that many of the critiques now leveled against Investor-State Dispute Settlement (ISDS) are, in Catherine Rogers’s words, “effectively recycled versions of criticisms that were originally leveled against the WTO and its decision-makers.” (Freya Baetens makes a similar point.)In this rejoinder, I would only like to make two points. Firstly, many commentators seem to think that in this article I took the normative position that World Trade Organization (WTO) dispute settlement is “better” than ISDS. Although I did point to the current discrepancy in public perception of the respective regimes, I purposefully avoided expressing any personal, normative position on one being “better” than the other (but apparently not explicitly enough).

scholarly journals When the hegemon goes rogue: leadership amid the US assault on the liberal trading order

2021 ◽  
Author(s):  
Kristen Hopewell
Keyword(s):  
Dispute Settlement ◽  
The United States ◽  
Leadership Role ◽  
Dispute Settlement Mechanism ◽  
Trading System ◽  
Lead System ◽  
Appellate Body ◽  
The Us ◽  
Multilateral Trading System ◽  
The Eu

Abstract Under President Trump, the United States abdicated its traditional leadership role in the trading system, abandoning multilateralism for aggressive unilateralism and launching an active assault on the World Trade Organization (WTO). Most strikingly, the US blocked appointments to the Appellate Body, jeopardizing the WTO's dispute settlement mechanism. With the trade regime in crisis, a key question has been whether other states would have the will and capacity to lead system-preserving initiatives. While most attention has focused on whether China—widely seen as the chief hegemonic challenger to the US—would assume the mantle of leadership, there has been considerable scepticism about the European Union's capacity to exercise leadership amid the crisis. The EU has generally been seen as punching below its weight in terms of leadership at the WTO. In this article, however, I argue that it is the EU, rather than China, that has taken the lead in advancing concrete initiatives directed at defending and maintaining the multilateral trading system. The EU led the creation of an interim appeals arrangement to replace the defunct Appellate Body—in effect, creating an ‘Appellate Body minus the US’. Although the rules-based multilateral trading system remains under threat, it is the EU, not China, that is acting as a system-preserving power, leading efforts to defend the established order.

Conclusions to Part II

2019 ◽  
pp. 161-166
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
The Other ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Rule Compliance ◽  
The World ◽  
Dispute Settlement System ◽  
The One

When asked what, if anything, distinguishes US-Clove Cigarettes from other disputes filed with the World Trade Organization (WTO) Dispute Settlement System (DSS), an Appellate Body (AB) Secretariat staff member replied: ‘A number of things and nothing at the same time’.1 This answer aptly captures the story of trade-and disputes and the DSS’s goal-attainment patterns in such cases, as revealed in this second part of the book. On the one hand, as in all WTO disputes, the DSS appears to be engaged in this class of cases in the routine legal exercise of law application and interpretation while pursuing its multiple goals, including rule-compliance and dispute resolution. On the other hand, as a WTO practitioner remarked when discussing the ‘interpretative exercise’ carried out by the DSS in trade-and disputes:...

On the Legality of the United States Action of Terminating India’s GSP Status

2020 ◽  
Vol 55 (1) ◽  
pp. 119-129
Author(s):  
R. Rajesh Babu
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Developed Countries ◽  
The United States ◽  
Appellate Body ◽  
Generalized System Of Preferences ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Developmental Opportunities ◽  
Enabling Clause

Since the US Presidential Proclamation terminating India status as a Generalized System of Preferences (GSP) beneficiary with effect from 5 June 2019, questions are raised on the WTO legitimacy of such an action. The US measure, which appears to have a punitive element—a move precipitated by lack of reciprocity from India by not providing ‘equitable and reasonable access’ for US products in Indian markets—challenges the fundamentally premise of the GSP schemes. Since the GSP schemes are established to provide economic and developmental opportunities for developing countries, and once established must be administered as per the 1979 General Agreement on Tariffs and Trade Enabling Clause, meaning it must be on a ‘generalised’, ‘non-reciprocal’ and ‘non-discriminatory’ basis, can India raise a legitimate challenge against the US action at the WTO Dispute Settlement Body? Or can the GSP schemes, being voluntary and unilaterally administered, be structured by developed countries as trade policy tools with stringent trade and non-trade conditionalities? The decision of the Appellate Body in European Communities—Tariff Preferences, the contested nature of the Enabling Clause and the heterogeneous nature of developing countries at the WTO makes the interpretation knotty. In this context, this article provides a brief comment on the legal basis of the Enabling Clause in the WTO framework and the legitimacy of the US action of termination of India from the beneficiary status. Keeping aside the legal question, the author is also of the view that time is ripe for India to consider ‘graduating’ itself from such preferential arrangements and engage in binding obligations that are reciprocal and sustainable. JEL Codes: K33, O24

scholarly journals Introduction

2019 ◽  
Vol 18 (2) ◽  
pp. 169-172
Author(s):  
CHAD P. BOWN ◽  
PETROS C. MAVROIDIS
Keyword(s):  
Dispute Settlement ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System

The WTO dispute settlement system has come under severe criticism in recent times, which does not seem, for now at least, to affect its relevance. In terms of output, 2017 was yet another bumper year. We review eight cases that constitute the ‘last word’ of the dispute settlement system: we review exhaustively all Appellate Body reports, as well as all un-appealed panel reports.

Guarding the Great Wall?—jurisprudential review of treaty interpretative tools in Chinese BIT-based arbitration cases

2020 ◽  
Author(s):  
Shen Wei
Keyword(s):  
Dispute Settlement ◽  
Active Role ◽  
The Other ◽  
Policy Response ◽  
Appellate Body ◽  
Other Hand ◽  
The Us ◽  
Great Wall ◽  
The Eu

Abstract Inconsistency has been said to be one of the most severe shortcomings the existing investor–State dispute settlement (the ISDS) system possesses. Inconsistency, if not cured, is likely to affect the legitimacy of the ISDS. Partly in response to the claims of inconsistency and illegitimacy of the ISDS, the EU has proposed to have a permanent investment court to replace the ISDS while the US proposed to have an appellate body for the current ISDS along with a large camp of undecided states having no firm position on the ISDS reform. China, on the other hand, has not issued an official response to the concept of a permanent investment court, partially because of its less active role in the use of the existing ISDS. More recent years have witnessed China’s increasing involvement in ISDS cases. The purpose of this article is to review these China BIT-related ISDS cases, in particular, the awards on jurisdiction, and the tribunals’ varying techniques in interpreting the ISDS clauses in China’s BITs with a focus on the jurisprudential analyses of these cases and the tribunals’ treaty interpretive techniques. Not surprisingly, the interpretative tendency has been quite uniform. In brief, the tribunals have tended to be more expansive when they were called upon to determine the jurisdictional issues. Although this article is largely jurisprudential, a sense of the tribunals’ arbitral techniques may help shape some foundational underpinnings for China’s policy response to the proposals to reform the ISDS system made by the EU, the US, and others.

European Legal Culture and WTO Dispute Settlement: Thirty Years of Socio-Legal Transplants from Brussels to Geneva

2020 ◽  
Vol 19 (1) ◽  
pp. 107-133
Author(s):  
Tommaso Soave
Keyword(s):  
Significant Contribution ◽  
Dispute Settlement ◽  
Legal Culture ◽  
The Self ◽  
Political Environment ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Social ◽  
Trade Measures

Abstract This article argues that the legal culture of EC/EU institutions has made a significant contribution to the ethos, the style, and the tone of WTO dispute settlement bodies. Areas of alignment between the two regimes include the self-perceived role of adjudicators vis-à-vis their political environment and the jurisprudence on the ‘necessity’ of non-trade measures. Based on these premises, the article traces some of the social and professional pathways through which European sensibilities and perspectives have found their way from Brussels (and Luxembourg) to Geneva. In particular, it describes the convergent trajectories of the EC/EU and the GATT/WTO professional communities. The goal of the analysis is to provide a fresh outlook on the ongoing diplomatic stalemate surrounding the future of the Appellate Body and WTO dispute settlement at large.

scholarly journals Why Developing Countries are at Disadvantage Position in WTO Dispute Settlement Mechanism

2014 ◽  
Vol 1 (2) ◽  
pp. 60-63
Author(s):  
Muhammad Waqas
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Third Parties ◽  
Dispute Settlement Mechanism ◽  
Trade Dispute ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Specialized Institutions ◽  
Settlement Mechanism

The Dispute Settlement Board of WTO aims to solve the disputes of WTO members regarding international trade. Dispute settlement process involves the parties and third parties to a case, and it operates through the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts and several specialized institutions. Although the dispute settlement mechanism provides opportunities to the developing countries to seek remedies if they are aggrieved by any other country, yet there are certain challenges for the developing countries to participate effectively in DSM. The study finds out the challenges that caused the role of developing countries less significant in the WTO dispute settlement process. Moreover, several recommendations have also been made for making the role of developing countries more effective.DOI: http://dx.doi.org/10.3126/ijssm.v1i2.10103 Int. J. Soc. Sci. Manage. Vol-1, issue-2: 60-63

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