Legitimating Behind the Smoke Screen in the Battle Over Clove Cigarettes

2019 ◽  
pp. 127-160
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

Recent years have confronted the World Trade Organization (WTO) Dispute Settlement System (DSS) with an intense wave of complex linkage disputes. US-Clove Cigarettes, which stands at the centre of this chapter, serves as the second case study in the investigation into the DSS’s goal-attainment endeavours in this category of WTO disputes. The chapter begins with a review of several jurisprudential milestones leading from the early US-Shrimp, examined in Chapter 5, to the more recent US-Clove Cigarettes, examined here, with a view to portraying the legitimation continuum of which the latter dispute forms a part. The chapter then discusses the intricate legitimacy setting in which US-Clove Cigarettes unfolded and, through a close goal-oriented analysis, shows how the intensified legitimacy concerns aroused shaped the goals pursued by the DSS and the judicial choices made towards their achievement. The chapter concludes by linking the goal-attainment efforts identified to the broader DSS goal-based effectiveness framework advanced in the book.

Substance and Style—How the WTO Adjudicators Legitimize their Decisions

2018 ◽  
Author(s):  
Christiane Gerstetter
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Judicial Decision ◽  
Settlement System ◽  
Member States ◽  
Judicial Decisions ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

This chapter analyses how the World Trade Organization (WTO) dispute settlement bodies legitimize their decisions and by implication also the WTO Dispute Settlement System as well as the WTO as an institution more broadly. The author argues there are two relevant dimensions for understanding how judges legitimize judicial decisions: the substantive outcomes of cases, that is who wins and loses and what interpretations are adopted, and the way a judicial decision is justified. She concludes that the WTO dispute settlement bodies act strategically in order to win the acceptance of the member states, and ultimately legitimize this dispute settlement system as a judicial entity.

scholarly journals The Impending Dejudicialization of the WTO Dispute Settlement System?

2018 ◽  
Vol 112 ◽  
pp. 316-321
Author(s):  
Richard H. Steinberg
Keyword(s):  
United States ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

The Appellate Body (AB) of the World Trade Organization (WTO) is facing a crisis. Appointment of AB members requires a consensus of the Dispute Settlement Body (comprised of all WTO members), and the United States has been blocking a consensus on further appointments since Donald J. Trump became the president. Without new appointments, the ranks of the AB have been diminishing as AB members’ terms have been expiring. If this continues (and many expect the United States to continue blocking a consensus on appointments), then in December 2019, through attrition, the number of AB members will fall below the threshold necessary to render decisions, at which point the AB will cease to function.

Extending the Analysis

2019 ◽  
pp. 265-311
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
Regional Trade Agreements ◽  
Regional Trade ◽  
Trade Offs ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

The present chapter extends the goal-based analytic framework applied in Parts II and III of the book to an additional category of disputes filed with the World Trade Organization (WTO) Dispute Settlement System (DSS)—those reflecting the growing friction between the WTO’s multilateral trade regime and the network of regional trade agreements (RTAs) proliferating around the globe. Looking at a series of prominent RTA-related cases that came before the WTO DSS, the extensive analysis carried out in this chapter shows that the dynamic reality of goal shifts and goal conflicts experienced within the DSS is not unique to trade-and and perennial disputes. Similar processes can be observed in the histories of other classes of WTO disputes, an analysis of which is likely to disclose different DSS goal-attainment patterns evidencing new goal priorities and trade-offs, and resulting in varying dimensions of judicial effectiveness and ineffectiveness, adjusted to the new operational environments.

scholarly journals Discontinuity in the Internalization of the World Trade Organization Rules: Assessing the Democratic Deficit Critique Against the World Trade Organization Dispute Settlement System

2009 ◽  
Vol 46 (4) ◽  
pp. 1039
Author(s):  
Yuka Fukunaga
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Democratic Deficit ◽  
Settlement System ◽  
Member States ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

International institutions are often criticized for their democratic deficit. Among these institutions, the World Trade Organization (WTO) dispute settlement system is most frequently targeted. This article focuses on the strength of this critique and aims to refute its factual premise through the examination of several Panel and Appellate Body decisions. The author also argues that the WTO dispute settlement system deliberately leaves a certain degree of discontinuity between members’ domestic legal orders and the WTO Agreement, such that the system pays a degree of deference to member states and allows substantial discretion in the process of internalizing the rules of the WTO Agreement within domestic legal orders. Finally, the author concludes that this discontinuity remains strong, and serves to enhance the democratic autonomy of member states instead of defeating it.

Conclusion

2019 ◽  
pp. 312-332
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
Comparative Analysis ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Unintended Consequences ◽  
Institutional Changes ◽  
Wto Dispute Settlement ◽  
The World ◽  
International Adjudication ◽  
Dispute Settlement System

The present chapter concludes the work. It sums up the key findings of the study while discussing the results emerging from a comparative analysis of the three categories of disputes examined throughout the book. The chapter then revisits the central arguments put forth in the book and articulates the lessons to be learned for the study of the goals, operation, and effectiveness of the World Trade Organization (WTO) Dispute Settlement System (DSS), and of international courts more broadly. It also discusses some of the insights to be offered with respect to possible institutional changes or reforms of the WTO DSS, with a view to ensuring the system’s future effectiveness. The chapter closes with several observations that go beyond effectiveness, pertaining to the costs and unintended consequences attendant on more effective and empowered international adjudication.

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:...

The Multilateral Trade System Goes Bananas

2019 ◽  
pp. 180-218
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
Multilateral Trade ◽  
Wto Dispute Settlement ◽  
Starting Point ◽  
Multilateral Trading System ◽  
The World ◽  
Main Factors ◽  
Dispute Settlement System

The transatlantic Bananas dispute rambled on in the multilateral trade system for almost two decades. The convoluted conflict, standing at the centre of this chapter, provides a useful starting point for studying the goal-attainment efforts exhibited by the World Trade Organization (WTO) Dispute Settlement System (DSS) in perennial disputes, together with the goal-shifting and goal-conflict patterns characterizing such cases. The chapter first provides a brief background of the Bananas case. It then recounts the dispute’s major turning points in the multilateral trading system, and identifies the main factors rendering the conflict so prolonged and resistant to resolution. On these foundations, the chapter turns to a close goal-based reading of EC-Bananas, tracing the DSS’s goal-attainment efforts and the goal shifts marking this lengthy dispute. Thereafter, the chapter examines the resulting conflicts between DSS goals and the mixed, noncompliant outcomes ultimately produced in EC-Bananas, while assessing their ramifications for an analysis of the system’s effectiveness.

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