Trade Wars, Trade-Offs, and the International Rule of Law

2019 ◽  
pp. 169-179
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
Goal Attainment ◽  
Dispute Settlement ◽  
Law And Politics ◽  
Trade Offs ◽  
Wto Dispute Settlement ◽  
Multilateral Trading System ◽  
The Common ◽  
Dispute Settlement System ◽  
Trade Wars ◽  
International Rule

This chapter sets the scene for the analysis of the operation and goal-attainment patterns of the World Trade Organization (WTO) Dispute Settlement System (DSS) in ‘perennial’ disputes, the dispute category at the centre of Part III, which provides another instructive venue for exploring whether and how the unique challenges posed before the DSS in this class of cases shape stakeholders’ expectations from the DSS, shift the emphasis among its various goals, and stimulate trade-offs between them. After discussing the main challenges associated with perennial disputes, the chapter situates these conflicts within the broader historical and institutional context of the multilateral trading system. The chapter then challenges the common appellation of such cases as ‘wrong’ cases due to their heightened prospects of noncompliance, while pointing to the shift away from compliance taking place in such conflicts and the enhanced role the DSS comes to play at the interstice between law and politics, with a view to achieving other organizational objectives.

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.

Linkage Disputes and the Enduring Quest for Legitimacy

2019 ◽  
pp. 91-103
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
Institutional Context ◽  
Trading System ◽  
Trade Offs ◽  
Multilateral Trading System ◽  
The World ◽  
Dispute Settlement System

This chapter sets the scene for the analysis of the Dispute Settlement System (DSS) operation and goal-attainment efforts in ‘linkage’ (or ‘trade-and’) disputes, the dispute category at the centre of Part II. As the chapter explains, linkage disputes have long subjected the World Trade Organization (WTO) and the DSS to intense legitimacy challenges; they thus form an instructive site for examining how the systemic challenges raised in such cases shape DSS goal-attainment efforts, motivate shifts and trade-offs between its goals, and, in consequence, affect DSS effectiveness in realizing its manifold objectives. The chapter first clarifies the notion of legitimacy as employed here, and situates the story of linkage disputes in the broader historical and institutional context of the multilateral trading system. It then unpacks the various legitimacy challenges encapsulated in linkage disputes while highlighting the shifts these challenges seem to generate between DSS goals, engaging the system in a heightened quest after its legitimization objectives.

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.

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.

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:...

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.

Goals in Context

2019 ◽  
pp. 50-61
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Fundamental Question ◽  
Trade Offs ◽  
Wto Dispute Settlement ◽  
The World ◽  
Current Design ◽  
Dual Character ◽  
Relevant Context ◽  
Dispute Settlement System

Under the goal-based approach advanced in the book, a methodical and comprehensive investigation into the effectiveness of the World Trade Organization (WTO) Dispute Settlement System (DSS) ought to start from a fundamental question: what are the goals (i.e. the desired outcomes) this system is to generate? With a view to establishing the relevant context for identifying and analysing these goals, the chapter provides a brief overview of the origins and evolution of the WTO DSS. It also describes the system’s current design and procedures. The chapter closes with some reflections on the hybrid legal/diplomatic, bilateral/multilateral character of the WTO DSS, reflected in the system’s structure and procedures as well as in its goals. This dual character, as illustrated later in the book, nurtures many of the shifts, conflicts, and subsequent trade-offs exhibited between the system’s goals throughout its operations.

The Transatlantic Conflict Over Beefed-Up Beef

2019 ◽  
pp. 219-257
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Transatlantic Trade ◽  
Law And Politics ◽  
Wto Dispute Settlement ◽  
Informative Case ◽  
Basic Facts ◽  
Dispute Settlement System ◽  
Effectiveness Assessment

Alongside EC-Bananas, the transatlantic trade feud over hormone-fed beef constitutes another informative case study for investigating how the challenges invoked in perennial disputes affect the motivations for and the practice of disputing at the World Trade Organization (WTO), generate shifts and conflicts between the goals of the WTO Dispute Settlement System (DSS), and shape the outcomes it ultimately yields. The chapter first recounts the basic facts of EC-Hormones and the dispute’s major milestones in the multilateral trade system. It then distils the factors that rendered EC-Hormones so resistant to compliance and resolution. On this basis, the chapter turns to an in-depth, goal-based analysis of the dispute, exploring the goal shifting characterizing the DSS’s operation throughout the conflict and the heightened role the system played along the fine line between law and politics. Finally, the chapter examines the mixed outcomes delivered in the case while addressing the goal conflicts those outcomes represent and their implications for the DSS’s effectiveness assessment.

Trade and Development

2019 ◽  
pp. 284-306
Author(s):  
Makane Moïse Mbengue
Keyword(s):  
Dispute Settlement ◽  
Decisive Role ◽  
Settlement System ◽  
Trading System ◽  
Multilateral Trade ◽  
Wto Dispute Settlement ◽  
System P ◽  
Multilateral Trading System ◽  
Indirect Impact ◽  
Dispute Settlement System

This chapter describes and analyzes the UN’s contribution to the field of trade and development. Despite UN treaty-making being scarce in this area, the Organization has played a decisive role in the building and shaping of the multilateral trading system. In particular, the United Nations Conference on Trade and Development (UNCTAD) has allowed for a better integration of developmental concerns within multilateral trade. In addition to these aspects of direct influence by the UN, it has also had some indirect impact on the construction of the jurisprudence in the context of the WTO dispute settlement system.

scholarly journals Non-Compliance in WTO Dispute Settlement: Assessing the Effectiveness of WTO Retaliation from Its Purpose(s)

2021 ◽  
Author(s):  
◽  
Michelle Engel Limenta
Keyword(s):  
Dispute Settlement ◽  
Central Point ◽  
Settlement System ◽  
Sole Purpose ◽  
Wto Dispute Settlement ◽  
Strict Compliance ◽  
The Common ◽  
Dispute Settlement System

<p>The issue of non-compliance with the Dispute Settlement Body (DSB) recommendations and rulings emerges when the violator state fails to bring its inconsistent measures into conformity with its WTO obligations within a reasonable period of time. Compensation and suspension of concessions or other obligations (retaliation) are the only remedies provided under WTO law for cases of non-compliance. Many academic writings, as well as statements from WTO Members, have demonstrated pessimism concerning the effectiveness of these remedies, particularly retaliation. The central point of this thesis concerns three main issues: the problems of WTO retaliation, the question of the effectiveness of retaliation, and the purposes of retaliation. This thesis aims to provide another perspective, besides the common “harm-resulted” perspective, for assessing the effectiveness of WTO retaliation. Accordingly, it provides several approaches: (1) identification of the purpose of retaliation in order to assess its effectiveness; (2) analysis of the enquiry whether there are in fact several purposes of WTO retaliation; (3) examination of the question whether the presence of retaliation purposes other than that inducing compliance is within the ambit of WTO law; (4) consideration of retaliation as a way of inducing a mutually agreeable solution; and (5) consideration of the question whether any deviation from strict compliance would undermine the WTO dispute settlement system. On the basis of extensive research on the purposes of WTO retaliation, namely through interpreting Article 22 of the DSU, examining the design of WTO treaty, assessing the academic writings/debates as well as the statements of arbitrators; several conclusions are made, of which the main one is that inducing compliance is not the sole purpose that WTO retaliation can pursue. Therefore compliance is not the only benchmark by which the effectiveness of WTO retaliation should be measured.</p>

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