Recent Anti-ISDS Discourse in the Japanese Diet: A Dressed-Up But Glaring Hypocrisy

2015 ◽  
Vol 16 (5-6) ◽  
pp. 931-951 ◽  
Author(s):  
Shotaro Hamamoto
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Government Procurement ◽  
Large Majority ◽  
State Sovereignty ◽  
Political Issue ◽  
The World ◽  
Investment Treaties ◽  
Japanese Diet

As in many parts of the world, an anti-investor-State dispute settlement (ISDS) discourse has been propagated also in Japan. In the Japanese Diet (Japan’s parliament), ISDS is criticized as infringing State sovereignty; as being incompatible with the Japanese Constitution; as unduly restricting regulatory space and government procurement; as being biased in favor of the United States; and as being acceptable only in relation to developing States. These criticisms are difficult to sustain and in fact ineffective as investment treaties continue to be approved by the Diet by unanimity or by a large majority. An analysis of the rhetoric of these criticisms and of actual voting records suggest that investor-State arbitration itself is not an independent political issue in Japan, but used as a pretext to manifest an anti-American sentiment or to criticize the incumbent government.

Conclusion

2018 ◽  
pp. 145-156
Author(s):  
Carl Lindskoog
Keyword(s):  
United States ◽  
Human Rights ◽  
The United States ◽  
September 11 ◽  
State Sovereignty ◽  
Terrorist Attacks ◽  
Immigration Detention ◽  
Freedom Of Movement ◽  
The World ◽  
Universal Human Rights

The conclusion examines the United States’ detention practices in the wake of the terrorist attacks of September 11, 2001, and the global spread of immigration detention that saw countries around the world constructing their own detention regimes from the United States’ model. It then conducts a brief examination of the problem that emerges at the intersection of state sovereignty and universal human rights; it closes with a survey of the contemporary movement against immigration detention, asking what future there might be for a world in which liberty and freedom of movement are treated as inalienable human rights.

The New Dispute Settlement:From the GATT to the WTO

1995 ◽  
Vol 8 (1) ◽  
pp. 115-133 ◽  
Author(s):  
Amelia Porges
Keyword(s):  
United States ◽  
European Union ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
The European Union ◽  
New Era ◽  
International Dispute ◽  
The World ◽  
Settlement Of Disputes

On 30 December 1994 in Geneva, the four major players in world trade -the United States, the European Union, Japan, andCanada - accepted the Agreement Establishing the World Trade Organization (WTO Agreement).The entry into force of the Agreement on 1 January 1995 brings both expanded and improved trade rules and greatly improved enforcement. We have entered a new era in international dispute settlement. This brief article discusses the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 of the WTO Agreement, the negotiating process that led to it, and the implementation of the Understanding in the United States.

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.

Diplomacy and the Settlement of International Trade Disputes

2020 ◽  
Vol 64 (7-8) ◽  
pp. 1358-1389 ◽  
Author(s):  
Julia Gray ◽  
Philip Potter
Keyword(s):  
United States ◽  
International Trade ◽  
World Trade Organization ◽  
Dispute Resolution ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Trade Disputes ◽  
The World ◽  
The Impact

How do countries settle disputes in the shadow of the law? Even in the presence of legalized dispute settlement, countries still rely on diplomatic channels to resolve conflicts. But it can be difficult to assess diplomacy’s impact on dispute resolution because those channels tend to be opaque. We present both an original theory of the impact of diplomacy on dispute resolution and a novel measure of diplomacy. If countries with close or, conversely, distant relationships use legal channels for dispute resolution, diplomacy will have little impact on dispute settlement; resorting to legal recourse among friends or adversaries likely means that the dispute is intractable. However, diplomacy can increase the chances of settlement between countries with moderate levels of affinity. We test this argument using a protocol-based proxy for diplomatic interactions—gifts given at the occasion of meetings between diplomatic counterparts—that would otherwise be difficult to observe. Using the case of the United States and its disputes in the World Trade Organization, we find support for our argument. This suggests that even when countries resort to legalized methods of dispute settlement, bilateral dealmaking still plays an important role.

scholarly journals U.S. Refusal to Appoint Members Renders WTO Appellate Body Unable to Hear New Appeals

2020 ◽  
Vol 114 (3) ◽  
pp. 518-525
Keyword(s):  
United States ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Appellate Body Report ◽  
Appellate Body ◽  
The World ◽  
Bona Fide ◽  
Wto Appellate Body

Over the last few years, the United States has been pressuring the World Trade Organization (WTO) to reform the Appellate Body by refusing proposals to fill vacancies. On December 10, 2019, the terms of two Appellate Body members expired, leaving one member left for the seven-member body. This has brought new appeals to a standstill, as an appeal from a panel established by the Dispute Settlement Body must be heard by three Appellate Body members. In February of 2020, the United States elaborated on its complaints about the Appellate Body in a report published by the Office of the United States Trade Representative. In the spring of 2020, in response to the continued U.S. resistance to filling vacancies on the Appellate Body, a group of WTO members established an interim arrangement to handle appeals through arbitration. Also in the spring of 2020, the United States described as invalid a recent Appellate Body report regarding a dispute between Canada and the United States, asserting that none of the three persons who issued the report were in fact bona fide Appellate Body members.

scholarly journals WHAT ARE THE THREATS TO THE FUTURE OF THE WTO?

2021 ◽  
Vol 53 (4) ◽  
pp. 133-150
Author(s):  
Montej Abida ◽  
◽  
Ilhem Gargouri ◽  
Keyword(s):  
United States ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
The European Union ◽  
Appellate Body ◽  
The World ◽  
The Future ◽  
Trade War ◽  
Regulatory Functions

Today we are witnessing a serious crisis that could lead to the collapse of the World Trade Organization (WTO). This crisis is the consequence of the uncooperative behavior of the triad: the United States, the European Union and East Asia. When there is a confrontation between these three most powerful regional blocs, there is inevitably a blockage and a destructive trade war similar to that of the 1930s. In these times of crisis, each country tries to save its economy by relying on the strategy of protectionism. The negotiation and regulatory functions of the WTO are paralyzed: the Dispute Settlement Body is seriously affected by the refusal of the United States, since 2016, to renew the members of the Appellate Body (AB) whose mandates were expiring. This jeopardizes international rules negotiated since 1947, when the General Agreement on Tariffs and Trade (GATT) was created. The existence of liberalization fatigue and a growing rejection of globalization raises questions about the future of the WTO.

The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators Are from Mars, Trade Adjudicators from Venus

2015 ◽  
Vol 109 (4) ◽  
pp. 761-805 ◽  
Author(s):  
Joost Pauwelyn
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
The European Union ◽  
Trade Disputes ◽  
Transatlantic Trade ◽  
The World ◽  
Twentieth Anniversary ◽  
Dispute Settlement System ◽  
Trade And Investment

At the twentieth anniversary of the World Trade Organization (WTO), the WTO’s dispute settlement system is celebrated as one of the organization’s biggest achievements. Although powerful members such as China, the European Union (EU), and the United States are regularly on the losing side of WTO trade disputes, overall support for the system remains high. If anything, it has increased over time, with early criticism by civil society waning. Compare this situation to investor-state dispute settlement (ISDS), centered around the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). ISDS, which started in earnest around the same time that the WTO was created, is under fire not only in capital-importing countries ranging from Ecuador, Indonesia, and South Africa but also in capital-exporting nations such as Australia, Germany, and the United States. Indeed, in the ongoing EU-U.S. negotiations over a Transatlantic Trade and Investment Partnership (TTIP), ISDS emerged as one of the biggest bones of contention.

The World Trade Organization’s Dispute Settlement Body

2018 ◽  
Author(s):  
Gregory Shaffer ◽  
Manfred Elsig ◽  
Sergio Puig
Keyword(s):  
United States ◽  
World Trade ◽  
Dispute Settlement ◽  
Selection Process ◽  
The United States ◽  
Direct Access ◽  
International Dispute ◽  
The World ◽  
Trade Politics ◽  
Dispute Settlement System

This chapter discusses how the authority of the Appellate Body (AB) of the World Trade Organization (WTO) rapidly became extensive. It nonetheless remains fragile given geopolitical shifts that have helped catalyze the rise of neo-nationalist trade politics in the United States. The establishment of extensive AB authority represented a legalization leap in which international dispute settlement moved from limited narrow authority under the General Agreement on Tariffs and Trade (GATT) to significantly more expansive authority. However, the WTO is an interstate dispute settlement system, so private parties have no direct access to the AB. The AB thus confronts state pressure and at times shapes its decisions to facilitate WTO Member compliance with them. The AB’s authority appears threatened by the US refusal to approve the launching of the selection process to replace retiring AB members. The United States is reacting, in particular, to AB rulings against US import relief practices.

scholarly journals Addressing (or Not) Widespread Concerns with the WTO

2018 ◽  
Vol 112 ◽  
pp. 321-322
Author(s):  
Terence P. Stewart
Keyword(s):  
United States ◽  
World Trade ◽  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System ◽  
Advisory Opinions

The United States for at least sixteen years has had serious concerns with whether the World Trade Organization (WTO) dispute settlement system was operating according to the terms upon which WTO Members had agreed. While the United States has been a major supporter of the WTO system and the dispute settlement system generally, concerns about sovereignty and the proper functioning of the system have been important since at least 2002, reflected in U.S. legislation and actions by three administrations. Concerns have existed on (1) whether panels and the Appellate Body have honored the limitations contained in Articles 3.2 and 19.2 of the Dispute Settlement Understanding (DSU) not to create rights or obligations; (2) the issuance of advisory opinions on issues not raised or not necessary to the resolution of the dispute; (3) actions of the Appellate Body that permit deviation from the DSU without affirmative authorization by the Dispute Settlement Body (DSB); and, former Appellate Body members continuing to be involved in cases after their term has expired (failure to complete appeals in the DSU required maximum time of ninety days). These are all issues that have concerned the United States for years but also have been raised by other members.

The Role of Precedent and Stare Decisis in the World Trade Organization's Dispute Settlement Body

2019 ◽  
Vol 47 (02) ◽  
pp. 90-104
Author(s):  
Zachary Flowers
Keyword(s):  
United States ◽  
World Trade ◽  
Dispute Settlement ◽  
Trade Agreements ◽  
The United States ◽  
Alcoholic Beverages ◽  
Stare Decisis ◽  
Appellate Body ◽  
The World

AbstractThe World Trade Organization was established in 1995 and brought together countries from around the world for the purpose of fairly regulating the trade of goods, services, and intellectual property between its member states. While treaties and other trade agreements have existed between countries for hundreds of years, the WTO's most significant innovation is its dispute settlement process through the Dispute Settlement Body. Countries agree to be bound to the decisions of the DSB upon their admittance into the WTO. The DSB is a two-tiered adjudicative system consisting of the lower panels and the higher Appellate Body.The United States, under both the Obama and Trump administrations, has blocked the appointment of AB judges. This tactic has limited the number of active judges to three. The AB normally has seven members. The United States has listed a number of reasons for their boycott of the system, among them is that the AB is functioning as if its reports are to be binding precedent on the lower panel and to future DSB cases, in a manner similar to stare decisis. This issue has been observed over the years and there is conflict between interpretations of precedent under Article 3:2 of the Dispute Settlement Understanding and Article IX:2 of the WTO Agreement. Caselaw of the DSB from over the years has also raised interesting questions and the appearance of the use of precedent.This article will be examining the historical fundamentals and use of precedent and the doctrine of stare decisis. It will then turn into an examination of the institutional and regulatory framework of the WTO, particularly Article 3:2 of the DSU and Article IX:2 of the WTO Agreement, and whether it allows or leaves room for a system of binding precedent. Finally, jurisprudence of the DSB will be surveyed for evidence of this system. Reports that will be examined are Japan-Alcoholic Beverages, India-Patents, India-Autos, and Australia-Plain Packaging Tobacco.

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