The WTO Appellate Body and the TRIPS Agreement

2017 ◽  
Author(s):  
Daniel Gervais
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Common Law ◽  
Trips Agreement ◽  
Domestic Court ◽  
Dispute Settlement Mechanism ◽  
Appellate Body ◽  
Wto Appellate Body ◽  
Settlement Mechanism

This contribution reviews the role of the World Trade Organization’s (WTO) Appellate Body—a part of its dispute-settlement mechanism—in interpreting the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It discusses, first, the way in which the Appellate Body functions when compared to a common law jurisdiction or a general or specialized domestic court. The contribution then turns to the three disputes concerning the TRIPS Agreement that have reached the Appellate Body since 1995, and the five cases filed against Australia challenging plain packaging measures targeting tobacco products. The primary purpose of the contribution is not to discuss those cases individually in detail but rather to offer a perspective on how the Appellate Body might play a greater role in building the interface between the rules and standards contained in the TRIPS Agreement, and those contained in international law outside the WTO.

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

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.

National Legislatures

2018 ◽  
Author(s):  
Kevin L. Cope ◽  
Hooman Movassagh
Keyword(s):  
International Law ◽  
Common Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Comparative Analyses ◽  
Judicial Decisions ◽  
National Courts ◽  
Legislative Branch ◽  
National Legislatures

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces characterizes comparative international law as involving “comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. We agree that courts can play a large part in diversifying how international law works across different systems, but we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts—and therefore, those currently most needing study—are the international law interpretations of national legislatures.

The Legitimate Regulatory Distinction Test: Incomplete and Inadequate for the Particular Purposes of the TBT Agreement

2016 ◽  
Vol 15 (4) ◽  
pp. 543-562 ◽  
Author(s):  
JASON HOUSTON-MCMILLAN
Keyword(s):  
Dispute Settlement ◽  
Technical Barriers To Trade ◽  
Dispute Settlement Mechanism ◽  
Appellate Body ◽  
The Creation ◽  
The Cost ◽  
Special Circumstances ◽  
Settlement Mechanism

AbstractPrior to 2011, the Agreement on Technical Barriers to Trade had been somewhat neglected as a dispute-settlement mechanism, due in part to the lack of previous interpretation of the Agreement by WTO DSB Panels. In 2012, the Appellate Body adjudicated on three TBT disputes:US–Clove Cigarettes, US–Tuna II, andUS–COOL, aiming to officially interpret and clarify Articles 2.1 and 2.2 of the Agreement by creating a distinct test for a measure's consistency with these Articles. This paper explores the relevant decisions of both the Panel and Appellate Body in the three disputes which led to the creation of the ‘legitimate regulatory distinction’ test. The substance behind this phrase, placed in context, is dissected along with the associated idea of ‘even-handedness’. The test attempts to simplify future interpretations regarding what will constitute unjustifiable discrimination, but at the cost of the necessary distinction between the GATT and the TBT Agreement being blurred. The result is a test which is incomplete and which fails to take account of the special circumstances surrounding the TBT Agreement.

scholarly journals International Law and dispute settlement mechanism

2016 ◽  
Vol 17 ◽  
Author(s):  
Carlos Ricardo Caichiolo
Keyword(s):  
International Law ◽  
21St Century ◽  
International Conflict ◽  
Dispute Settlement ◽  
Third Party ◽  
Dispute Settlement Mechanism ◽  
Peaceful Settlement ◽  
Feasible Solutions ◽  
Settlement Of Disputes ◽  
Settlement Mechanism

The DSM, or Dispute Settlement Mechanism, in the absence of a judicial body, is the closest representation of a supreme court or judicial institution in a regional bloc or other international organisation. The search for a peaceful settlement of disputes in the international arena had led to the development of the DSM during the 20th and into the 21st century. The DSM acts as an impartial third party, wherein it intervenes in any international conflict to offer feasible solutions for both sides.O MSC, ou Mecanismo de Solução de Controvérsias, na ausência de um órgão judicial, é a representação mais próxima de uma Corte Suprema ou de instituição judiciária em um bloco regionl ou em organização internacional diversa. A busca por um meio pacífico de solução de disputas no meio internacional levou à criação do MSC ao longo dos séculos XX e XXI. O MSC age como um terceiro imparcial, na medida em que ele intervém em conflitos internacionais com o intuito de ofertar soluções possíveis para as partes envolvidas.

Perfect War: Alberico Gentili on the Use of Force and the Early Modern Law of Nations

Grotiana ◽  
2020 ◽  
Vol 41 (2) ◽  
pp. 263-281
Author(s):  
Valentina Vadi
Keyword(s):  
Early Modern ◽  
International Law ◽  
Civil Wars ◽  
Dispute Settlement ◽  
Theory And Practice ◽  
Dark Side ◽  
Dispute Settlement Mechanism ◽  
Law Of Nations ◽  
Imperial Expansion ◽  
Settlement Mechanism

Abstract Gentili’s conceptualization of war as a conflict between states attempted to limit the legitimacy of war to external wars only, thus precluding the legitimacy of civil wars. It reflected both the emergence of sovereign states and the vision of international law as a law among polities rather than individuals. The conceptualization of war as a dispute settlement mechanism among polities rather than a punishment for breach of the law of nations and the idea of the bilateral justice of war humanized the conduct of warfare and the content of peace treaties. The idea of perfect war excluded brigandage, piracy, and civil wars from its purview. Some scholars have suggested that perfect war had a dark side, legitimizing imperial expansion. Others have cautioned that Gentili explicitly opposed imperial expansion rather adopting anti-imperialist stances. This article suggests that these ambivalent readings of the Gentilian oeuvre reflect the ambivalence of the early modern law of nations. Under the early modern law of nations, aggression for the sake of empire was clearly unjust; nonetheless, imperial expansion took place. Whereas ‘a law which many transgress[ed] [wa]s nonetheless a law’, there was a wide divide between theory and practice.1

Legal Protection for Small and Medium-Sized Enterprises through Investor-State Dispute Settlement

2017 ◽  
Author(s):  
Alexander Gebert
Keyword(s):  
International Law ◽  
Multinational Corporations ◽  
Dispute Settlement ◽  
Legal Protection ◽  
Substantial Part ◽  
Dispute Settlement Mechanism ◽  
Long Duration ◽  
Foreign Countries ◽  
Investment Treaties ◽  
Settlement Mechanism

The chapter illustrates the participation of small and medium-sized enterprises (SMEs) in the investor-state dispute settlement (ISDS) system, as well as obstacles from pursuing claims under investment treaties with corresponding solutions. SMEs are increasingly investing in foreign countries, and may be subject to state measures violating international law standards afforded under investment treaties. Investment treaties regularly also provide for ISDS as a means to enforce these standards by allowing foreign investors to commence arbitration proceedings against a state in a neutral forum. The chapter reveals that despite the perception as a dispute settlement mechanism accessible exclusively for large multinational corporations, in fact a substantial part of claimants in ISDS proceedings are SMEs. While it is true that high costs and the long duration of ISDS proceedings may be obstacles for SMEs, the flexibility of arbitration proceedings and the availability of external funding provide for opportunities to control time and costs.

Commercial stakeholders in international economic dispute resolution and the issue of adjudicatory independence

2017 ◽  
Vol 24 (4) ◽  
pp. 582-601 ◽  
Author(s):  
Joanna Jemielniak
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Trade Disputes ◽  
Commercial Arbitration ◽  
State Action ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body

The article discusses the problem of influence exerted by commercial actors in international trade disputes and consequences of this phenomenon for positions adopted by adjudicators. It explores the role of commercial stakeholders inasmuch as they comprise a driving force behind state action, and examines procedural options available to those stakeholders. The issue of adjudicatory independence and neutrality is considered in the context of involved industries and their interests as the non-party spiritus movens behind WTO dispute settlement processes. Related procedural aspects, such as confidentiality/transparency of proceedings and the possibilities for participation of non-party actors, are also examined. It is argued that WTO litigation is often only one track among several available to the stakeholders in the pursuit of their interests. As a consequence, the problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body in the area under discussion are set against those of investment and commercial arbitration (as the institutions and rules designed for the latter are also being used for trade controversies, as evidenced in the Softwood Lumber LCIA arbitrations). Consequently, the problem of establishing standards of adjudicatory independence is deemed a significant factor in strategic selection of the most advantageous forum for dispute resolution.

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