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.

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 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.

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.

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.

Trade and National Security: Rising Risks for the WTO

2020 ◽  
Vol 19 (1) ◽  
pp. 137-148
Author(s):  
Tatiana Lacerda Prazeres
Keyword(s):  
National Security ◽  
Dispute Settlement ◽  
The United States ◽  
Trade Barriers ◽  
Settlement System ◽  
Trade Restrictions ◽  
Political Risks ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System ◽  
Gatt 1994

AbstractThe WTO is exposed to significant political risks deriving from both the abusive employment of the national security argument, as well as the use of the WTO dispute settlement system to address this problem. This article explores the implications of the first WTO panel decision, adopted in April 2019, in which the argument of ‘essential security interests’ was employed to justify trade restrictions. Article XXI of the GATT 1994 now tends to be invoked in other ongoing disputes, notably by the United States in the dispute settlement cases involving its barriers to steel and aluminum. The article argues that pathways other than WTO litigation should be explored to deal with trade barriers adopted under the argument of national security and, despite the absence of simple solutions, it considers some possible alternatives.

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.

scholarly journals The Creation of the Multilateral Trade Court: Design and Experiential Learning

2015 ◽  
Vol 14 (S1) ◽  
pp. S13-S32 ◽  
Author(s):  
MANFRED ELSIG ◽  
JAPPE ECKHARDT
Keyword(s):  
Experiential Learning ◽  
International Law ◽  
Dispute Settlement ◽  
Uruguay Round ◽  
The United States ◽  
Settlement System ◽  
Multilateral Trade ◽  
The Creation ◽  
Dispute Settlement System ◽  
Depth Interviews

AbstractThe creation of the World Trade Organization (WTO)'s dispute settlement system (DSS) in 1995 remains one of the most puzzling outcomes in international politics and international law in the 1990s. We provide a new explanation for this move to law. We argue that important contextual variables of the negotiations have been largely overlooked by existing explanations, namely ‘experiential learning’. While negotiations to create institutions are characterized by uncertainty about distributional effects, negotiators will look for clues that moderate uncertainty. In the context of the Uruguay Round negotiations, a significant amount of information was drawn from actual practice and experience with the existing General Agreement on Tariffs and Trade (GATT) dispute settlement system. In short, experience gained with judicial institutions and outcomes is important to understand the key results of the negotiations: a legalization leap, more specifically a judicialization of the existing dispute settlement system. We focus on the two dominant actors in the negotiations (the United States and the (then) European Community) and provide evidence for our argument based on an analysis of GATT cases in the 1980s, GATT documents, and in-depth interviews with negotiators who participated in the negotiations.

scholarly journals Living Without the Appellate Body: Multilateral, Bilateral and Plurilateral Solutions to the WTO Dispute Settlement Crisis

2019 ◽  
Vol 20 (6) ◽  
pp. 862-890
Author(s):  
Geraldo Vidigal
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
The United States ◽  
Settlement System ◽  
Trade Relations ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System ◽  
The One ◽  
High Degree

Abstract The World Trade Organization (WTO) is in crisis. Once the Appellate Body has fewer than three members in office, it will become non-operational, compromising the WTO’s compulsory and binding dispute settlement system. Attempts to overcome the opposition of the United States to Appellate Body appointments through majority rule appear legally fragile and politically unwarranted, while purely ad hoc bilateral solutions fall short of reproducing the security provided by compulsory and binding dispute settlement. This article explores and discusses bilateral and ‘plurilateral’ agreements that willing Members may sign to re-establish compulsory dispute resolution, arguing that the one that best fits the letter and spirit of the Dispute Settlement Understanding is an ex ante agreement to establish an ‘appeal Arbitrator’ in case of a non-operational Appellate Body. If appropriately designed, such an agreement not only allows willing Members to restore a high degree of security and predictability in their mutual trade relations but also increases the incentives for multilateral negotiations leading to a permanent resolution of the crisis.

Sign in / Sign up

Export Citation Format

Share Document