The WTO Dispute Settlement System in 2020: Facing the Appellate Body Paralysis

2021 ◽  
Vol 30 (1) ◽  
pp. 381-421
Author(s):  
Giorgio Sacerdoti
Keyword(s):  
Dispute Settlement ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System

scholarly journals Introduction

2019 ◽  
Vol 18 (2) ◽  
pp. 169-172
Author(s):  
CHAD P. BOWN ◽  
PETROS C. MAVROIDIS
Keyword(s):  
Dispute Settlement ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System

The WTO dispute settlement system has come under severe criticism in recent times, which does not seem, for now at least, to affect its relevance. In terms of output, 2017 was yet another bumper year. We review eight cases that constitute the ‘last word’ of the dispute settlement system: we review exhaustively all Appellate Body reports, as well as all un-appealed panel reports.

Mutually agreed solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration

2011 ◽  
Vol 10 (3) ◽  
pp. 343-373 ◽  
Author(s):  
ALBERTO ALVAREZ-JIMÉNEZ
Keyword(s):  
Dispute Settlement ◽  
Analytical Framework ◽  
Settlement System ◽  
Trade Disputes ◽  
Applicable Law ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Intimate Relation ◽  
Dispute Settlement System

AbstractThe unprecedented enforcement of the mutually agreed solution (MAS) in the WTO Softwood Lumber disputes – but outside the WTO dispute settlement system – and the recent use of MAS to resolve important trade disputes should trigger a hard look at these dispute settlement instruments provided for by the DSU. This article seeks to provide a detailed framework of analysis of MAS under the DSU that allows the WTO dispute settlement system to adjudicate MAS-related disputes. WTO Members should not go outside the system to enforce MAS. The article illustrates that MAS can create binding obligations and that MAS are WTO law, given the explicit reference to them in the DSU, their intimate relation with the WTO-covered agreements and the requirement for compliance with these agreements. In addition, the article offers an interpretation of the DSU that allows panels and the Appellate Body to regard MAS as applicable law. This interpretation is offered in the view that there is no policy reason to sustain that these controversies – always fully related to WTO rights and obligations and framed under the corners of the covered agreements – have to be resolved by an adjudication system other than that of the WTO.

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.

The pandemic is delaying solutions to the most pressing problems of global trade while creating new challenges

2020 ◽  
pp. 22-29
Author(s):  
A. Portanskiy
Keyword(s):  
Global Economy ◽  
Dispute Settlement ◽  
Global Trade ◽  
Economic Regulation ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
New Challenges ◽  
Dispute Settlement System

The article raises the question of the role of Global economic regulation institutions, in particular, the WTO after the Covid-19 pandemic. The author considers the aggravated modern problems of the WTO, and focuses on the crisis of the Organization that arose in December 2019 in connection with the suspension of the appellate body functioning in the WTO dispute settlement system. The author also tries to identify new challenges of the XXI century for the Global economy, regulatory institutions, as well as for Russia.

Determining a “Reasonable” Implementation Timeline for Developing Countries in WTO Disputes: An Appraisal of Special Treatment Commitments in DSU Article 21.3 (c) Arbitrations

2013 ◽  
Vol 12 (1) ◽  
pp. 31-47 ◽  
Author(s):  
Khorsed Zaman
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Special Treatment ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Different Types ◽  
Implementation Time ◽  
Dispute Settlement System ◽  
Settlement Of Disputes

Abstract The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) prescribes three different types of arbitration which are ancillary to the Panel and Appellate Body functions of the WTO dispute settlement system (DSS). These are the arbitrations for determining the implementation timeline under Article 21.3 (c) of the DSU and two other types of arbitration under Articles 21.5 and 22.6. This article focuses on some specific approaches and functions of Article 21.3 (c) arbitrations and examines the procedural actions which are related to determining a suitable implementation time for developing countries. It investigates the consistency and coherence of practice in selected arbitral awards in which developing countries claimed “particular attention” either as complainant or as implementing parties. This article points out that the lack of specific guidelines in the DSU is the substantial cause for arbitrators’ noncompliance with Article 21.2 provisions in Article 21.3 (c) arbitrations, which questions the procedural fairness of such arbitrations. This situation, amongst others, reiterates the urgent necessity to amend the relevant DSU rules.

Competing Jurisdictions Between MERCOSUR and WTO

2008 ◽  
Vol 7 (2) ◽  
pp. 205-234 ◽  
Author(s):  
Nikolaos Lavranos ◽  
Nicolas Vielliard
Keyword(s):  
Dispute Settlement ◽  
Arbitral Tribunal ◽  
Settlement System ◽  
International Courts ◽  
Settlement Systems ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Dispute Settlement System ◽  
Different Levels

AbstractThe wider issues raised by the Brazilian Tyres case are discussed in this contribution. Regarding the institutional aspects, this case examines the difficulties between regional dispute settlement systems and the global WTO dispute settlement system. In particular, the WTO Appellate Body showed no deference towards the prior report of the MERCOSUR Arbitral Tribunal. Indeed, the WTO Appellate Body is espousing a supremacy of WTO law – not only vis-à-vis regional dispute settlement bodies, but also regarding WTO panels. It is argued that this attitude is not sustainable in the light of the increasing proliferation of international courts and tribunals, which inevitably results into disputes being adjudicated by different courts and tribunals at different levels. Regarding the substantive aspects, this case is a prime example of the difficulties of balancing non-trade interests and trade interests. At the end, trade interests superseded the nontrade interests. It is argued that the way Article XX GATT has been interpreted and applied by the WTO Appellate Body leaves states insufficient room to address urgent environmental and health problems by restricting trade. It is argued that in this case Brazil's non-trade interests should have been given preference over the trade interests of the EC and Uruguay.

WTO Enforcement Issues

2007 ◽  
Vol 7 (1) ◽  
pp. 1850105 ◽  
Author(s):  
Joseph Pelzman ◽  
Amir Shoham
Keyword(s):  
Dispute Settlement ◽  
Current System ◽  
Critical Threshold ◽  
Settlement System ◽  
Consultation Process ◽  
Usual Practice ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System ◽  
Core Questions

In theory, the WTO dispute settlement system is expected, via an elaborate system of sequential legal maneuvers to ensure the implementation of the dispute settlement body (DSB) recommendations. In reality when trade issues rise above some critical threshold to a respondent, the theory behind the DSU enforcement breaks down and the well meaning legal system only leads to prolonging the dispute rather than resolving it. Since 1995, more than 300 complaints have been filed through the WTO dispute settlement system. In most cases, the parties reach a mutually satisfactory solution in accordance with the WTO Agreements through consultations without having recourse to the panel and Appellate Body review. When the consultation process fails the resulting process of Panel reports and Appellate Body reports result in a removal or modification of the violating measures. In those cases where there is no removal or modification of the violating measures, the period of non-compliance tends to be very long and leads to core questions about the true intent of the DSU. In particular, was the DSU designed to ensure a legal process for the settlement of a dispute and to recommend a remedy to the offending violation but was not designed to secure compliance. The intent of this paper is to show that this is indeed the case. Moreover, if one treats the WTO as a contract, then the non-compliance issue may be viewed as an `efficient breach' and the only efficient remedy is a `fine' rather than the usual practice of suspension of concessions or other obligations to the offending Member. Under our suggested enforcement rules, it may be possible for a Member to continue to breach her obligation to the WTO contract while simultaneously compensating for damages created by the offending measure. The end result will be more efficient than the current system of diplomatic maneuvering designed to pressure the Member to remove or modify the offending measure.

scholarly journals The WTO’s Dispute Settlement Body as a Voice Mechanism

2019 ◽  
Vol 20 (6) ◽  
pp. 820-861
Author(s):  
Joshua Paine
Keyword(s):  
Dispute Settlement ◽  
The Political ◽  
Amicus Curiae ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System ◽  
And Control ◽  
The Relationship

Abstract This article focuses on the World Trade Organization’s (WTO) Dispute Settlement Body (DSB) – the diplomatic body, consisting of representatives of WTO members, that administers the dispute settlement system. Focusing on the WTO, the article provides one perspective on the relationship between international tribunals and the political bodies that oversee the governance of such tribunals. Specifically, I argue that the DSB operates as an important ‘voice’ mechanism, which enables members to provide regular feedback to WTO adjudicators, and helps sustain the internal legitimacy of WTO adjudication. However, the DSB can also be used in ways that undermine judicial independence. In short, the DSB is a key site where the tension plays out between WTO adjudicators’ independence from members, and control by, and accountability to, members. The episodes examined in detail to develop this argument are the crisis of a generation ago over amicus curiae briefs, and the ongoing crisis over Appellate Body appointments.

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