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.

scholarly journals Reforms for culmination of the deadlock in appellate body of WTO: An agenda of saving the multilateral trading system

2021 ◽  
Vol 2 (1) ◽  
pp. 50-62
Author(s):  
Asif Khan ◽  
Ximei Wu
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Descriptive Study ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Trading System ◽  
Appellate Body ◽  
Multilateral Trading System ◽  
The World ◽  
Settlement Mechanism

The World Trade Organization's (WTO’s) dispute settlement mechanism, known as the "pearl in the crown," is stalled due to United States (U.S.) obstruction, which prevents appellate body members from being ordained. This situation continues, and the WTO’s dispute settlement function is paralyzed since 2019. The WTO has faced a crisis in recent years, and the trade legislation has stagnated. The dispute settlement body was also blocked due to U.S. interference, which led to the failure of the appellate body’s members to be selected. The data has been gathered for this descriptive study using secondary research method, including different newspaper articles and the internet, which were outlined and noted. This paper presents and evaluates several existing proposals on how to get out of the impasse. This paper points out whether the existing WTO members can choose to join or not participate in establishing a new appellate body. On this basis, it makes its own relatively unique proposal, namely, to establish a substantial dispute settlement mechanism outside the WTO, parallel to the existing dispute settlement mechanism, and it demonstrates the legal feasibility of the proposal. Immediately, the states should begin negotiations on the significant agreements required for this new appellate body. It will effectively solve the deadlock in the dispute settlement mechanism caused by the United States, blocking the appointment of members of the appellate body.

Defending the Rule-based Trading Regime: The Multilateral Trading System at Risk and Required Responses

2019 ◽  
Vol 18 (3) ◽  
pp. 78-87
Author(s):  
Fukunari Kimura
Keyword(s):  
East Asia ◽  
Dispute Settlement ◽  
The United States ◽  
Economic Effects ◽  
Dispute Settlement Mechanism ◽  
Trading System ◽  
Rule Based ◽  
Multilateral Trading System ◽  
Trading Regime ◽  
The Multilateral Trading System

The current trade turmoil is not limited to negative economic effects stemming from the series of recent trade measures erected by the United States as part of the escalating U.S.–China trade war. The more serious issue that will unfold in the middle to long term is the potential collapse of the rule-based trading regime. The weakening of the multilateral trading system centered by the World Trade Organization (WTO) seems to continue. East Asia has been one of the largest beneficiaries of the rule-based trading regime in its course of extending and deepening international production networks and must now take proactive moves to defend and preserve this stable economic environment. Two crucial tasks in the preservation of the WTO are efforts to maintain the functionality of the dispute settlement mechanism and the revival of the WTO as a forum for future trade negotiations. At the same time, East Asia must develop a network of mega–free trade agreements (FTAs) to partially supplement a possible loss of the multilateral framework.

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

Legalization in context: The design of the WTO’s dispute settlement system

2017 ◽  
Vol 19 (2) ◽  
pp. 304-319 ◽  
Author(s):  
Manfred Elsig
Keyword(s):  
Rational Design ◽  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
Trading System ◽  
Wto Dispute Settlement ◽  
Multilateral Trading System ◽  
The Creation ◽  
Dispute Settlement System

This article asks why the dispute settlement provisions of the multilateral trading system underwent significant reforms during the negotiations that led to the creation of the World Trade Organization (WTO) in 1995. Why did the leading trading powers accept a highly legalized system that departed from established political–diplomatic forms of settling disputes? The contribution of this article is threefold. First, it complements existing accounts that exclusively focus on the United States with a novel explanation that takes account of contextual factors. Second, it offers an in-depth empirical case study based on interviews with negotiators who were involved and novel archival evidence on the creation of the new WTO dispute settlement system. Third, by unpacking the long-standing puzzle of why states designed a highly legalized system, it addresses selected blind spots of the legalization and the rational design literatures with the aim of providing a better understanding about potential paths leading toward significant changes in legalization.

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

How Should WTO Members React to Their WTO Crises?

2019 ◽  
Vol 18 (3) ◽  
pp. 503-525 ◽  
Author(s):  
ERNST-ULRICH PETERSMANN
Keyword(s):  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
National Parliaments ◽  
Selection Procedures ◽  
Appellate Body ◽  
The Us ◽  
Other World ◽  
Wto Appellate Body ◽  
Dispute Settlement System

AbstractSince 2017, the United States (US) and other World Trade Organization (WTO) members have been violating their legal duties and democratic mandates given by national parliaments to maintain the WTO Appellate Body (AB) as legally prescribed in Article 17 of the WTO Dispute Understanding (DSU). Article 17 defines the AB as being ‘composed of seven persons’, with vacancies being ‘filled as they arise’. Sections 2 and 3 explain why none of the reasons offered by the US for its blocking of the (re)appointment of AB candidates – on grounds unrelated to the personal qualifications of the candidates – can justify the illegal disruptions of the WTO legal and dispute settlement system. EU trade diplomats must exercise leadership using the existing legal powers and duties of the WTO Ministerial Conference and General Council under Article IX WTO – if necessary, based on ‘a majority of the votes cast’ – to complete the WTO selection procedures for filling AB vacancies and protect the AB as legally defined in Article 17 DSU. Sections 4 and 5 explain why the competition, social policy, and rule-of-law principles underlying European ‘ordo-liberalism’ offer coherent strategies for overcoming the WTO governance crises by limiting hegemonic abuses of both US neo-liberalism and Chinese state-capitalism.

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.

scholarly journals Dictum on Dicta: Obiter Dicta in WTO Disputes

2018 ◽  
Vol 17 (3) ◽  
pp. 509-533 ◽  
Author(s):  
HENRY GAO
Keyword(s):  
Legal System ◽  
Dispute Settlement ◽  
Common Law ◽  
The United States ◽  
Legal Issue ◽  
Recent Attempt ◽  
Stare Decisis ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us

AbstractThis paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate Body decisions in WTO dispute settlement, the paper rejects the US argument by refuting each of the three premises of the US argument, i.e., the WTO legal system based on Common Law; WTO follows stare decisis; and the WTO has rules against dicta. In addition to original contributions on the nature of the WTO dispute settlement system in theory, the article also provides some practical advice on how the controversy may be resolved.

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.

Precedent in the WTO: Retrospective Reflections for a Prospective Dispute Settlement Mechanism

2020 ◽  
Vol 11 (2) ◽  
pp. 262-277
Author(s):  
Mariana Clara de Andrade
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Legitimacy Crisis ◽  
Settlement Mechanism

Abstract Several factors triggered the legitimacy crisis which paralysed the WTO Appellate Body in December 2019. This article focuses on one of them: the criticism expressed by the United States that the ‘Appellate Body claims its reports are entitled to be treated as precedent’. This work describes the origins of the problem and examines the issue of the precedential value of adopted reports within the WTO dispute settlement. It argues that the problem cannot be addressed through textual attempts to better define the value of precedent, as some have suggested, but can be alleviated through the practice of adjudicators. Moreover, it argues that the criticisms regarding the precedential value of past reports is due to the inherent hierarchy ensuing from the existence of an appeals organ. Therefore, the demise of the Appellate Body may weaken the precedential value of past adopted reports.

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