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.

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 Is the WTO Appellate Body in Limbo? The Roots of the Crisis in the WTO Dispute Settlement Body and the Available Routes Navigating the Quagmire

2021 ◽  
Vol 24 ◽  
pp. 1-46
Author(s):  
Nnamdi Stanislaus Umenze
Keyword(s):  
Dispute Settlement ◽  
World Trade Organisation ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Root Cause ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
International Dispute ◽  
Wto Appellate Body ◽  
Dispute Settlement System

In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.

scholarly journals United States—Anti-dumping Measures Applying Differential Pricing Methodology to Softwood Lumber from Canada

2020 ◽  
Vol 114 (4) ◽  
pp. 735-743
Author(s):  
Niccolò Ridi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Weighted Average ◽  
The United States ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Dispute Settlement System

This dispute, brought by Canada against the United States, constitutes another chapter in three separate sagas: the enduring softwood lumber dispute between the two North American nations; the debate over the acceptability of the practice of “zeroing”; and the fight over the value and role of World Trade Organization (WTO) Appellate Body precedent. Notably, the panel departed from established Appellate Body decisions finding, inter alia, that zeroing was permissible under a weighted average-to-transaction (W-T) methodology. This departure is remarkable, not just because it runs counter to prior jurisprudence, but also for the reasoning supporting it and the circumstances in which it occurred. Indeed, the Panel Report was issued in the midst of a crisis of the WTO dispute settlement system arising from the United States’ decision to block the reappointment of Appellate Body members. The United States justified this action, which eventually resulted in the Appellate Body losing its quorum to hear new appeals on December 10, 2019, on the basis of complaints, among others, that the Appellate Body had championed an approach to precedent that the United States found incompatible with the intended role of dispute settlement within the WTO. While members worked feverishly to formulate a compromise that might respond to the United States’ criticisms and soften the effect of the Appellate Body's approach, the Panel suggested its own. Thus, it found room to depart from prior precedent (which the United States argued had been wrongly decided) while paying lip service to the Appellate Body.

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.

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

scholarly journals Comparison of First to File Doctrine and Trademark Dispute Settlement Mechanism in Indonesia and the United States

2021 ◽  
Vol 04 (07) ◽  
Author(s):  
M. Iqbal Simatupang ◽  
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Secondary Data ◽  
The United States ◽  
Comparative Approach ◽  
Common Mechanism ◽  
Dispute Settlement Mechanism ◽  
Trademark Law ◽  
The Difference ◽  
Settlement Mechanism

The research explained comparatively the application of the first to file doctrine and the trademark dispute settlement mechanism in Indonesia and in the United States. The purpose of this research was to provide a broad explanation of the application of the first to file doctrine and provide an overview of the mechanism for settling the problem of infringement of trademark rights. This study used a normative juridical research method with a statutory approach (Statute Approach) accompanied by a Comparative Approach, the data used was secondary data. Based on the research results, it was known that the Trademark Law still recognizes and / or implements the first to file and first to use doctrine. In Indonesian law, which basically adheres to the first to file doctrine, it still provides room for the first user to claim ownership of a trademark. Meanwhile, The Lanham Act accommodates the doctrine of first to use and first to file simultaneously but is limited by the trademark rights protection space. The mechanisms for settling trademark rights infringement disputes in Indonesia and in the United States have similarities and differences. The similarity is in both country, trademark dispute settllement is done through the litigation and non-litigation mechanism. The difference is that in Indonesia the most common mechanism is litigation, while in the United States the non-litigation mechanism is preferred in settling disputes over trademark rights.

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.

scholarly journals Remarks by Jennifer Thornton

2018 ◽  
Vol 112 ◽  
pp. 63-65
Author(s):  
Jennifer Thornton
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Public Welfare ◽  
Appellate Body ◽  
Welfare Measures ◽  
Wto Appellate Body ◽  
General Exceptions ◽  
Investment Agreements

The United States and its TPP partners negotiated footnote 14 in the context of a larger effort to clarify the scope of key substantive obligations in the Agreement's investment chapter, with a view to better insulating legitimate public welfare measures from challenge before Investor-State Dispute Settlement (ISDS) tribunals constituted pursuant to its terms. While some TPP partners originally advocated for the inclusion of a “General Exceptions” article in the investment chapter along the lines of GATT Article XX, the TPP parties ultimately concluded that ISDS tribunals typically have accorded more deference to states when interpreting non-discrimination obligations in investment agreements than has the WTO Appellate Body when interpreting the GATT. For that reason, the TPP parties negotiated a footnote directing tribunals to consider the rationale behind a challenged measure when evaluating whether it breaches a non-discrimination obligation, thus signaling that distinctions in treatment to achieve legitimate public welfare objectives may be permissible under the chapter in certain circumstances.

International trade—WTO—quantitative restrictions—environmental protection—endangered species—U.S. import ban on shrimp

1999 ◽  
Vol 93 (2) ◽  
pp. 507-514 ◽  
Author(s):  
Bernard H. Oxman ◽  
Gregory Shaffer
Keyword(s):  
United States ◽  
International Trade ◽  
Endangered Species ◽  
Dispute Settlement ◽  
The United States ◽  
Turtle Species ◽  
Wild Fauna ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Gatt 1994

United States—Import Prohibition of Certain Shrimp and Shrimp Products.World Trade Organization, Appellate Body, October 12, 1998.In May 1996, the United States effectively prohibited imports of shrimp and shrimp products from all countries that do not require commercial shrimp trawlers to use turtle-excluder devices (TEDs) to permit endangered species of sea turtles to escape from trawling nets to avoid drowning. In January 1997, India, Malaysia, Pakistan and Thailand requested that the WTO Dispute Settlement Body establish a panel to determine whether this import ban, among other things, violates the prohibition on quantitative restrictions in Article XI of GATT (1994). The United States maintained that its import ban was permitted under the exceptions set forth in paragraphs (b) and (g) of GATT Article XX. Four turtle species that migrate in and out of waters subject to the complaining parties’ jurisdiction are listed as endangered under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and are covered by the relevant U.S. regulation.

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