Rational Relationships

2021 ◽  
pp. 175-212
Author(s):  
Caroline E. Foster
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Wto Dispute Settlement ◽  
Regulatory Standard ◽  
Value Judgements ◽  
Policy Objectives ◽  
General Exceptions ◽  
Trade Measures ◽  
Domestic Level

Chapter Six continues Chapter Five’s examination of the regulatory coherence standard in WTO dispute settlement, this time focusing on ‘rational relationship’ testing under the non-discrimination provisions in the chapeau to the GATT and GATS general exceptions, as well as under the TBT and SPS Agreements. WTO non-discrimination jurisprudence looks for a rational relationship between a regulatory measure’s otherwise discriminatory aspects and the measure’s policy objectives. Rational relationship tests, like necessity tests, embody the emerging global regulatory standard of regulatory coherence, calling for a certain relationship between trade measures and their objectives. Like necessity testing, rational relationship testing lends itself to application in a way that accommodates decision-making at the domestic level on matters requiring important value judgements.

Necessity Testing

2021 ◽  
pp. 135-174
Author(s):  
Caroline E. Foster
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Policy Response ◽  
Economic Interests ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Regulatory Standard ◽  
General Exceptions

Part III comprises two chapters, Chapter Five and Chapter Six. These chapters together investigate the decisions of WTO panels and the Appellate Body in environmental and health cases. The chapters examine the major contribution made through WTO dispute settlement to the emerging global regulatory standard of regulatory coherence. Specifically, Chapter Five analyses the elaboration of the ‘necessity’ formula in the GATT and the GATS general exceptions’ subparagraphs, as well as under the TBT and SPS Agreements. The WTO adjudicatory process appears to have been protecting the traditional procedural justification of international law’s relative authority claim by enabling respect for domestic decision-making through democratic processes. Members’ entitlement to choose their level of protection against a risk is still at present fully recognised and there is vital scope for recognition of the importance to WTO Members of long-term non-economic interests requiring a multifaceted policy response.

European Legal Culture and WTO Dispute Settlement: Thirty Years of Socio-Legal Transplants from Brussels to Geneva

2020 ◽  
Vol 19 (1) ◽  
pp. 107-133
Author(s):  
Tommaso Soave
Keyword(s):  
Significant Contribution ◽  
Dispute Settlement ◽  
Legal Culture ◽  
The Self ◽  
Political Environment ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Social ◽  
Trade Measures

Abstract This article argues that the legal culture of EC/EU institutions has made a significant contribution to the ethos, the style, and the tone of WTO dispute settlement bodies. Areas of alignment between the two regimes include the self-perceived role of adjudicators vis-à-vis their political environment and the jurisprudence on the ‘necessity’ of non-trade measures. Based on these premises, the article traces some of the social and professional pathways through which European sensibilities and perspectives have found their way from Brussels (and Luxembourg) to Geneva. In particular, it describes the convergent trajectories of the EC/EU and the GATT/WTO professional communities. The goal of the analysis is to provide a fresh outlook on the ongoing diplomatic stalemate surrounding the future of the Appellate Body and WTO dispute settlement at large.

scholarly journals Risk Assessment, Science and Deliberation: Managing Regulatory Diversity under the SPS Agreement?

2012 ◽  
Vol 3 (4) ◽  
pp. 535-544
Author(s):  
Emily Reid
Keyword(s):  
Risk Assessment ◽  
Decision Making ◽  
Dispute Settlement ◽  
Review Process ◽  
Mutual Recognition ◽  
Fundamental Question ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Regulatory Decisions ◽  
Different Levels

The adoption by WTO Members of measures relating to the protection of health and life of animals, plants and humans is regulated by the WTO Sanitary and Phytosanitary (SPS)Agreement. A fundamental question in the application of this agreement concerns the distinction to be drawn between legitimate regulation and unlawful restriction of trade. This distinction can be difficult to discern, particularly since different communities have different levels of tolerance for risk, which leads to varying national regulatory decisions. This paper critically examines the approach taken to this question in rulings of the WTO dispute settlement panels and Appellate Body, highlighting and analysing three emergent issues:the role attributed to science, the two stage review process adopted and the application of the principle of mutual recognition. The importance of deliberative decision-making inthis context is emphasised, as is the need for recognition and acceptance of the regulatory diversity that this will bring.

Whither Science in WTO Dispute Settlement?

2008 ◽  
Vol 21 (4) ◽  
pp. 823-846 ◽  
Author(s):  
ALEXIA HERWIG
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Scientific Evidence ◽  
Political Decision ◽  
Risk Regulation ◽  
Novel Technologies ◽  
Wto Dispute Settlement ◽  
Precautionary Action ◽  
Contested Knowledge ◽  
Political Decision Making

AbstractThis article understands risk dialectically as a decision-making resource stressing probability but as also giving rise to further uncertainties. It shows that the panel report in EC – Biotech reflects an understanding of risk as decision-making that is deterministic and leaves little room for the application of precautionary approaches and non-scientific factors. It submits that such an approach is unsuitable for novel technologies with limited background knowledge and reduces the accountability of risk regulators. A different approach is put forth, which allows members greater scope for precautionary action while preventing trade protectionism. The article concludes that law can enhance its authority and epistemic validity through scientific evidence but only if it recognizes science's epistemic and its own limitations. Law has to approach science as contested knowledge and risk regulation as political decision-making, leading – inevitably – to more indeterminate solutions to legal conflicts.

The United States embargo on shrimp imports: legal and economic considerations

1998 ◽  
Vol 3 (2) ◽  
pp. 197-219 ◽  
Author(s):  
TAIMOON STEWART
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Legal Issues ◽  
Current Case ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Shrimp Industry ◽  
Economic Considerations ◽  
Trade Measures

The use of trade measures for environmental purposes has given rise to a series of economic and legal issues. These are explored in the paper through an examination of the United States embargo on imports of shrimp from several countries for environmental reasons, currently being considered by a WTO dispute settlement panel. The paper examines the effect on competitiveness of compliance with the higher standard imposed by the US, the appropriateness of universalizing those standards, and whether the US action is consistent with WTO rules. The major findings are that, in the case of Trinidad, (a) the competitiveness of the affected fishermen was reduced, (b) the US regulation was inappropriate to the conditions which prevailed in the shrimp industry there, and (c) the US action was WTO inconsistent given current interpretation of WTO rules. The paper anticipates that the current case could lead to a review of WTO rules, in favour of the environment.

Substance and Style

2021 ◽  
Author(s):  
Christiane Gerstetter
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Legal Theory ◽  
Empirical Studies ◽  
World Trade Organisation ◽  
Two Dimensions ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Wto Dispute Settlement ◽  
Sources Of Authority

This book analyses two dimensions of judicial decision-making at the World Trade Organisation (WTO): the substantive outcome produced and the judicial style embraced, in cases concerning national measures taken for non-trade objectives. Drawing on legal theory, empirical studies of judicial decision-making and an analysis of all the major non-trade cases of the WTO, the book concludes that the dispute settlement decisions can be understood in light of the fact that the WTO dispute settlement bodies, like other courts, need to legitimise their decisions. Both the substance and style of WTO judicial decision-making contribute in this regard. On the substantive side, there is a relatively mixed outcome of cases, in terms of the interpretations chosen. The WTO Appellate Body’s interpretations neither consistently favour trade interests nor do they systematically enhance the regulatory space of WTO Members. The dispute settlement bodies also have a distinct judicial style that relies on discursive (rather than institutional) sources of authority and is predominantly formalist.

Why Adjudicate?

2012 ◽  
Author(s):  
Christina L. Davis
Keyword(s):  
Policy Process ◽  
Steel Industry ◽  
Dispute Settlement ◽  
Domestic Politics ◽  
The United States ◽  
Trade Disputes ◽  
Checks And Balances ◽  
Wto Dispute Settlement ◽  
Chinese Intellectual ◽  
Trade War

The World Trade Organization (WTO) oversees the negotiation and enforcement of formal rules governing international trade. Why do countries choose to adjudicate their trade disputes in the WTO rather than settling their differences on their own? This book investigates the domestic politics behind the filing of WTO complaints and reveals why formal dispute settlement creates better outcomes for governments and their citizens. It demonstrates that industry lobbying, legislative demands, and international politics influence which countries and cases appear before the WTO. Democratic checks and balances bias the trade policy process toward public lawsuits and away from informal settlements. Trade officials use legal complaints to manage domestic politics and defend trade interests. WTO dispute settlement enables states and domestic groups to signal resolve more effectively, thereby enhancing the information available to policymakers and reducing the risk of a trade war. The book establishes this argument with data on trade disputes and landmark cases, including the Boeing-Airbus controversy over aircraft subsidies, disagreement over Chinese intellectual property rights, and Japan's repeated challenges of U.S. steel industry protection. The book explains why the United States gains better outcomes for cases taken to formal dispute settlement than for those negotiated. Case studies of Peru and Vietnam show that legal action can also benefit developing countries.

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