Commercial stakeholders in international economic dispute resolution and the issue of adjudicatory independence

2017 ◽  
Vol 24 (4) ◽  
pp. 582-601 ◽  
Author(s):  
Joanna Jemielniak
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Trade Disputes ◽  
Commercial Arbitration ◽  
State Action ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body

The article discusses the problem of influence exerted by commercial actors in international trade disputes and consequences of this phenomenon for positions adopted by adjudicators. It explores the role of commercial stakeholders inasmuch as they comprise a driving force behind state action, and examines procedural options available to those stakeholders. The issue of adjudicatory independence and neutrality is considered in the context of involved industries and their interests as the non-party spiritus movens behind WTO dispute settlement processes. Related procedural aspects, such as confidentiality/transparency of proceedings and the possibilities for participation of non-party actors, are also examined. It is argued that WTO litigation is often only one track among several available to the stakeholders in the pursuit of their interests. As a consequence, the problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body in the area under discussion are set against those of investment and commercial arbitration (as the institutions and rules designed for the latter are also being used for trade controversies, as evidenced in the Softwood Lumber LCIA arbitrations). Consequently, the problem of establishing standards of adjudicatory independence is deemed a significant factor in strategic selection of the most advantageous forum for dispute resolution.

scholarly journals United States—Anti-dumping Measures Applying Differential Pricing Methodology to Softwood Lumber from Canada

2020 ◽  
Vol 114 (4) ◽  
pp. 735-743
Author(s):  
Niccolò Ridi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Weighted Average ◽  
The United States ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Dispute Settlement System

This dispute, brought by Canada against the United States, constitutes another chapter in three separate sagas: the enduring softwood lumber dispute between the two North American nations; the debate over the acceptability of the practice of “zeroing”; and the fight over the value and role of World Trade Organization (WTO) Appellate Body precedent. Notably, the panel departed from established Appellate Body decisions finding, inter alia, that zeroing was permissible under a weighted average-to-transaction (W-T) methodology. This departure is remarkable, not just because it runs counter to prior jurisprudence, but also for the reasoning supporting it and the circumstances in which it occurred. Indeed, the Panel Report was issued in the midst of a crisis of the WTO dispute settlement system arising from the United States’ decision to block the reappointment of Appellate Body members. The United States justified this action, which eventually resulted in the Appellate Body losing its quorum to hear new appeals on December 10, 2019, on the basis of complaints, among others, that the Appellate Body had championed an approach to precedent that the United States found incompatible with the intended role of dispute settlement within the WTO. While members worked feverishly to formulate a compromise that might respond to the United States’ criticisms and soften the effect of the Appellate Body's approach, the Panel suggested its own. Thus, it found room to depart from prior precedent (which the United States argued had been wrongly decided) while paying lip service to the Appellate Body.

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.

WTO Dispute Settlement Post 2019: What to Expect?

2019 ◽  
Vol 22 (3) ◽  
pp. 297-321 ◽  
Author(s):  
Joost Pauwelyn
Keyword(s):  
Power Relations ◽  
Dispute Settlement ◽  
Short Term ◽  
Trade Disputes ◽  
Appellate Body ◽  
Ex Post ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Ex Ante ◽  
Wto Appellate Body

ABSTRACT What does the imminent demise of the WTO Appellate Body (AB) mean for the settlement of ongoing and future trade disputes? This editorial discusses two ‘unlikely solutions’, at least in the short term: the US lifts its veto on AB appointments; a WTO organ unlocks the impasse. Appeals pending on 10 December 2019 will most likely be carried-over pursuant to (contested) Rule 15 of the AB Working Procedures. For panel reports released after that date, four main scenarios emerge: (i) appeals ‘into the void’ blocking the panel report, (ii) no appeal ex post, or ex ante no appeal pacts, (iii) Article 25 appeal arbitration, (iv) ‘floating’ panel reports (interim or final), neither adopted, nor appealed/blocked. The transformation from GATT to WTO took half a century. Regular veto rights in the settlement of trade disputes may be back in a matter of months. It is one thing to lose the AB, quite another to return to pre-WTO dispute settlement where panel outcomes are not automatically binding and power relations play a considerably greater role. At the same time, it would be wrong to equate a (temporary?) return to GATT-style dispute settlement with the collapse of a rules-based WTO system.

Resolution of international trade disputes in the WTO and other Fora

2015 ◽  
Vol 14 (3) ◽  
pp. 147-156 ◽  
Author(s):  
Giorgio Sacerdoti
Keyword(s):  
Dispute Settlement ◽  
World Trade Organisation ◽  
Settlement System ◽  
Trade Disputes ◽  
Content Type ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Dispute Settlement System ◽  
Trade And Investment

Purpose – The purpose of this paper is to assess the success of the world trade organisation (WTO) dispute settlement system and its transferability to other fora. Design/methodology/approach – The paper compares the design and case law of trade and investment law, and seeks lessons for the settlement of trade and investment disputes in other fora. Findings – It concludes that despite its shortcomings, the WTO Appellate Body provides vital stability regarding legal interpretations, something notably absent from other fora. Originality/value – The paper offers the perspective of a former Member and Chairman of the WTO Appellate Body on the success of the dispute settlement system.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

1999 ◽  
Vol 48 (1) ◽  
pp. 199-206 ◽  
Author(s):  
Asif H. Qureshi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Market Access ◽  
The United States ◽  
Consultation Process ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Wto Appellate Body ◽  
Dispute Settlement System

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

scholarly journals The Collapse of the Appellate Body as a Determining Factor of the WTO’s Future

2021 ◽  
Vol 16 (3) ◽  
pp. 238-255
Author(s):  
Hryhorii M. Kalachyhin ◽  
Keyword(s):  
Dispute Resolution ◽  
World Order ◽  
The United States ◽  
Economic Regulation ◽  
Trade Disputes ◽  
Appellate Body ◽  
The World ◽  
Shifting Balance ◽  
Wto Appellate Body ◽  
The U.S

The World Trade Organization (WTO) is one of the leading institutions involved in global economic regulation. Its purposes are to ensure multilateral cooperation on the liberalization of international trade, harmonize existing standards and requirements, and peacefully resolve trade disputes between countries. Since 11 December 2019, dispute resolution has been handicapped due to the consistent blocking of the appointment of members to the WTO Appellate Body (AB) by the United States. This has reduced the multilateral trading system’s (MTS) predictability and threatens its final decay. In this article, the fundamental and formal causes of the collapse are described, and its circumvention mechanisms and effectiveness are discussed. At the same time, an assessment is given of the possibility to overcome the collapse in 2021, considering the change of the U.S. president and other events. Special attention is paid to Russia’s position and its current and potential losses. Finally, the issue of dispute resolution through regional trade agreements is proposed for discussion. The fundamental reasons for the collapse were the shifting balance of power in the world order and the WTO’s inflexibility in adjusting the rulebook and its procedures. The main reasons for the U.S.’ dissatisfaction are objective but based on formalities; the blockage of the AB is an overreaction. Moreover, the U.S.’ position on this issue has not changed with the new president. As a result, there is abuse of the current situation as WTO members file appeals “into the void.” Existing tools to circumvent the collapse are partial and not yet popular among WTO members. Russia needs to resume the AB’s work to complete previously started high-profile disputes and to defend its interests in the future.

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 Why Developing Countries are at Disadvantage Position in WTO Dispute Settlement Mechanism

2014 ◽  
Vol 1 (2) ◽  
pp. 60-63
Author(s):  
Muhammad Waqas
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Third Parties ◽  
Dispute Settlement Mechanism ◽  
Trade Dispute ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Specialized Institutions ◽  
Settlement Mechanism

The Dispute Settlement Board of WTO aims to solve the disputes of WTO members regarding international trade. Dispute settlement process involves the parties and third parties to a case, and it operates through the DSB panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts and several specialized institutions. Although the dispute settlement mechanism provides opportunities to the developing countries to seek remedies if they are aggrieved by any other country, yet there are certain challenges for the developing countries to participate effectively in DSM. The study finds out the challenges that caused the role of developing countries less significant in the WTO dispute settlement process. Moreover, several recommendations have also been made for making the role of developing countries more effective.DOI: http://dx.doi.org/10.3126/ijssm.v1i2.10103 Int. J. Soc. Sci. Manage. Vol-1, issue-2: 60-63

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.

Precedent in the WTO: Retrospective Reflections for a Prospective Dispute Settlement Mechanism

2020 ◽  
Vol 11 (2) ◽  
pp. 262-277
Author(s):  
Mariana Clara de Andrade
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Legitimacy Crisis ◽  
Settlement Mechanism

Abstract Several factors triggered the legitimacy crisis which paralysed the WTO Appellate Body in December 2019. This article focuses on one of them: the criticism expressed by the United States that the ‘Appellate Body claims its reports are entitled to be treated as precedent’. This work describes the origins of the problem and examines the issue of the precedential value of adopted reports within the WTO dispute settlement. It argues that the problem cannot be addressed through textual attempts to better define the value of precedent, as some have suggested, but can be alleviated through the practice of adjudicators. Moreover, it argues that the criticisms regarding the precedential value of past reports is due to the inherent hierarchy ensuing from the existence of an appeals organ. Therefore, the demise of the Appellate Body may weaken the precedential value of past adopted reports.

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