scholarly journals TRIPS Pluralism

2021 ◽  
pp. 1-22
Author(s):  
Daniel J. Gervais
Keyword(s):  
Climate Change ◽  
Dispute Settlement ◽  
Trips Agreement ◽  
Step Test ◽  
Protection Measures ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Mitigate Climate Change ◽  
Dispute Settlement System ◽  
The One

Abstract The article explains that the interpretation of the TRIPS Agreement by WTO dispute-settlement panels and the Appellate Body has palpably shifted since the establishment of the WTO in 1995. Some of this shift is also arguably present in disputes concerning other WTO instruments. This progressive shift comes at a time when key debates about TRIPS waivers are taking place on the rue de Lausanne, namely a first for the COVID-19 pandemic and a second possible one for environmental protection measures related to climate change. According to the proposed pluralist analysis of TRIPS, it was less likely as of 2020 that the WTO dispute-settlement system would find unjustifiable inconsistencies between WTO commitments, on the one hand, and measures to protect public health or mitigate climate change, on the other hand. Whether future Appellate Body will follow that jurisprudence is an open question. Though the analysis contained in the article may make the COVID-related TRIPS waivers doctrinally unnecessary and allow Members to take measures now, its main aim is to inform the debates about the waivers and the future interpretation of the TRIPS Agreement, including the three-step test.

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:...

scholarly journals Living Without the Appellate Body: Multilateral, Bilateral and Plurilateral Solutions to the WTO Dispute Settlement Crisis

2019 ◽  
Vol 20 (6) ◽  
pp. 862-890
Author(s):  
Geraldo Vidigal
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
The United States ◽  
Settlement System ◽  
Trade Relations ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System ◽  
The One ◽  
High Degree

Abstract The World Trade Organization (WTO) is in crisis. Once the Appellate Body has fewer than three members in office, it will become non-operational, compromising the WTO’s compulsory and binding dispute settlement system. Attempts to overcome the opposition of the United States to Appellate Body appointments through majority rule appear legally fragile and politically unwarranted, while purely ad hoc bilateral solutions fall short of reproducing the security provided by compulsory and binding dispute settlement. This article explores and discusses bilateral and ‘plurilateral’ agreements that willing Members may sign to re-establish compulsory dispute resolution, arguing that the one that best fits the letter and spirit of the Dispute Settlement Understanding is an ex ante agreement to establish an ‘appeal Arbitrator’ in case of a non-operational Appellate Body. If appropriately designed, such an agreement not only allows willing Members to restore a high degree of security and predictability in their mutual trade relations but also increases the incentives for multilateral negotiations leading to a permanent resolution of the crisis.

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 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.

Mutually agreed solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration

2011 ◽  
Vol 10 (3) ◽  
pp. 343-373 ◽  
Author(s):  
ALBERTO ALVAREZ-JIMÉNEZ
Keyword(s):  
Dispute Settlement ◽  
Analytical Framework ◽  
Settlement System ◽  
Trade Disputes ◽  
Applicable Law ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Intimate Relation ◽  
Dispute Settlement System

AbstractThe unprecedented enforcement of the mutually agreed solution (MAS) in the WTO Softwood Lumber disputes – but outside the WTO dispute settlement system – and the recent use of MAS to resolve important trade disputes should trigger a hard look at these dispute settlement instruments provided for by the DSU. This article seeks to provide a detailed framework of analysis of MAS under the DSU that allows the WTO dispute settlement system to adjudicate MAS-related disputes. WTO Members should not go outside the system to enforce MAS. The article illustrates that MAS can create binding obligations and that MAS are WTO law, given the explicit reference to them in the DSU, their intimate relation with the WTO-covered agreements and the requirement for compliance with these agreements. In addition, the article offers an interpretation of the DSU that allows panels and the Appellate Body to regard MAS as applicable law. This interpretation is offered in the view that there is no policy reason to sustain that these controversies – always fully related to WTO rights and obligations and framed under the corners of the covered agreements – have to be resolved by an adjudication system other than that of the WTO.

scholarly journals Book Review: Jens Lehne, Crisis at the WTO: Is the Blocking of Appointments to the WTO Appellate Body by the United States Legally Justified?

sui generis ◽  
2020 ◽  
Author(s):  
Charlotte Sieber-Gasser
Keyword(s):  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Legal Arguments ◽  
Wto Appellate Body ◽  
Dispute Settlement System

The US policy of blocking new appointments to the WTO Appellate Body relied on a number of legal arguments against the body’s work and ultimately succeeded in rendering the appellate mechanism of the WTO dispute settlement system inoperable in December 2019. In his book, Jens Lehne carefully analyses the various legal arguments officially brought forward by the US until summer 2019. His analysis is proof of the vulnerability of the WTO: despite equality of WTO members enshrined in the WTO treaties, the fate of the WTO remains largely dependent on the willingness of large economies to comply with a legally binding dispute settlement system.

The pandemic is delaying solutions to the most pressing problems of global trade while creating new challenges

2020 ◽  
pp. 22-29
Author(s):  
A. Portanskiy
Keyword(s):  
Global Economy ◽  
Dispute Settlement ◽  
Global Trade ◽  
Economic Regulation ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
New Challenges ◽  
Dispute Settlement System

The article raises the question of the role of Global economic regulation institutions, in particular, the WTO after the Covid-19 pandemic. The author considers the aggravated modern problems of the WTO, and focuses on the crisis of the Organization that arose in December 2019 in connection with the suspension of the appellate body functioning in the WTO dispute settlement system. The author also tries to identify new challenges of the XXI century for the Global economy, regulatory institutions, as well as for Russia.

Determining a “Reasonable” Implementation Timeline for Developing Countries in WTO Disputes: An Appraisal of Special Treatment Commitments in DSU Article 21.3 (c) Arbitrations

2013 ◽  
Vol 12 (1) ◽  
pp. 31-47 ◽  
Author(s):  
Khorsed Zaman
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Special Treatment ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Different Types ◽  
Implementation Time ◽  
Dispute Settlement System ◽  
Settlement Of Disputes

Abstract The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) prescribes three different types of arbitration which are ancillary to the Panel and Appellate Body functions of the WTO dispute settlement system (DSS). These are the arbitrations for determining the implementation timeline under Article 21.3 (c) of the DSU and two other types of arbitration under Articles 21.5 and 22.6. This article focuses on some specific approaches and functions of Article 21.3 (c) arbitrations and examines the procedural actions which are related to determining a suitable implementation time for developing countries. It investigates the consistency and coherence of practice in selected arbitral awards in which developing countries claimed “particular attention” either as complainant or as implementing parties. This article points out that the lack of specific guidelines in the DSU is the substantial cause for arbitrators’ noncompliance with Article 21.2 provisions in Article 21.3 (c) arbitrations, which questions the procedural fairness of such arbitrations. This situation, amongst others, reiterates the urgent necessity to amend the relevant DSU rules.

Sign in / Sign up

Export Citation Format

Share Document