scholarly journals Is the WTO Appellate Body in Limbo? The Roots of the Crisis in the WTO Dispute Settlement Body and the Available Routes Navigating the Quagmire

2021 ◽  
Vol 24 ◽  
pp. 1-46
Author(s):  
Nnamdi Stanislaus Umenze
Keyword(s):  
Dispute Settlement ◽  
World Trade Organisation ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Root Cause ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
International Dispute ◽  
Wto Appellate Body ◽  
Dispute Settlement System

In its over 25 years' history, the dispute settlement mechanism of the World Trade Organisation (WTO) has been touted as one of the most active and successful international adjudicatory systems in relation to other international dispute settlement fora. The process in the engagement of the system presents a tripartite structure consisting of consultation, panel and appellate stages, and the enforcement proceedings. The functions of these processes help to promote the trust and confidence of the member states in the WTO trade dispute settlement system. Now the Appellate Body (AB) is paralysed following the incapacitation and consequential suspension of the appellate function of the WTO Dispute Settlement Body (DSB), because of the insufficient membership caused by the United States blockade on the appointment process of AB members. The paper discusses the trajectory of the WTO dispute settlement reform from the GATT regime, the root cause of the suspension of the Appellate Body, and the options available for the disputants in and outside the WTO system. It concludes that the system possesses policy defects if the attitude of a single state can render the AB non-functional and should be transformed when the appellate system is resuscitated.

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 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.

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.

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.

How Should WTO Members React to Their WTO Crises?

2019 ◽  
Vol 18 (3) ◽  
pp. 503-525 ◽  
Author(s):  
ERNST-ULRICH PETERSMANN
Keyword(s):  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
National Parliaments ◽  
Selection Procedures ◽  
Appellate Body ◽  
The Us ◽  
Other World ◽  
Wto Appellate Body ◽  
Dispute Settlement System

AbstractSince 2017, the United States (US) and other World Trade Organization (WTO) members have been violating their legal duties and democratic mandates given by national parliaments to maintain the WTO Appellate Body (AB) as legally prescribed in Article 17 of the WTO Dispute Understanding (DSU). Article 17 defines the AB as being ‘composed of seven persons’, with vacancies being ‘filled as they arise’. Sections 2 and 3 explain why none of the reasons offered by the US for its blocking of the (re)appointment of AB candidates – on grounds unrelated to the personal qualifications of the candidates – can justify the illegal disruptions of the WTO legal and dispute settlement system. EU trade diplomats must exercise leadership using the existing legal powers and duties of the WTO Ministerial Conference and General Council under Article IX WTO – if necessary, based on ‘a majority of the votes cast’ – to complete the WTO selection procedures for filling AB vacancies and protect the AB as legally defined in Article 17 DSU. Sections 4 and 5 explain why the competition, social policy, and rule-of-law principles underlying European ‘ordo-liberalism’ offer coherent strategies for overcoming the WTO governance crises by limiting hegemonic abuses of both US neo-liberalism and Chinese state-capitalism.

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.

PUBLIC HEARINGS AT THE WTO APPELLATE BODY: THE NEXT STEP

2010 ◽  
Vol 59 (4) ◽  
pp. 1079-1098
Author(s):  
Alberto Alvarez-Jiménez
Keyword(s):  
Dispute Settlement ◽  
Good Reason ◽  
Positive Development ◽  
Settlement System ◽  
Exclusive Jurisdiction ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
International Adjudication ◽  
Wto Appellate Body ◽  
Dispute Settlement System

The WTO Appellate Body has so far authorized public appeal hearings as the exception, not the rule: it is limited to those instances in which the main parties request it. Such authorization constitutes a very positive development for the WTO dispute settlement system, for it enhances the transparency of the system at its highest stage. Indeed, the Appellate Body is becoming a leading actor in the formation of international law1 owing to the fact that it is the most active international court of the world, the relevance of the issues it deals with and the fact that it is at the apex of a dispute settlement system with permanent and exclusive jurisdiction over 153 States. Nonetheless, it is not in tune with inter-state international adjudication where the trend concerning hearings is, for good reason, geared towards openness and transparency, not privacy, as the rule.

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.

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.

Sign in / Sign up

Export Citation Format

Share Document