scholarly journals The Appellate Body of the Dispute Settlement Mechanism of the World Trade Organization

2017 ◽  
pp. 1-10
Author(s):  
Tarek Yahiaoui ◽  

The process of dispute settlement at WTO has been delegated to independent entities: private groups that consider cases as first instance structures, and the Appellate Body that hears appeals for special group summaries. For its part, the dispute settlement body (DSB), the political structure composed of all members of the Organization and its primary task is the general administration of the dispute settlement and decision-making system. The recommendations contained in the reports of the Special Groups and the Appellate Body are binding on the parties to the dispute only after the dispute settlement body has adopted them. However, this process of adoption is now almost automatic; in order not to adopt a resolution it is necessary for all members to agree unanimously, according to a technique known as the "reverse consensus" or "negative consensus", which we do not yet know a similar in the international law. The political control exercised by the dispute settlement body remains generally theoretical, because the reverse consensus technique imposed almost as a decision-making mechanism. As long as the complainant insists on his complaint, it is inconceivable that the parties to the dispute are not convinced of the outcome of the dispute and raise a consensus not to adopt a particular report. In fact, if members have not collectively endorsed the abstracts or solutions of special groups or the Appellate Body, they have not prevented the adoption of any report. The appeal procedure is without doubt the most prominent and authentic new addition to the Organization's dispute settlement mechanism established by the Marrakesh Accords. The parties to the dispute seen by the Special Group can only appeal to the Appellate Body within a specified period of the date of the distribution of its report to the members of the Organization. The designation given to this body raises the question: the appeal is aimed at amending or canceling a judgment of the first instance judge by second-tier judges and article 17 (13) of the memorandum of agreement goes in the same context, stating that: The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel". Thus, the powers granted to the Appellate Body are not far from those granted to courts of appeal in national legal systems. However, this rapprochement is soon reaching its limit, because judicial practice in national systems gives the appellant the power to review first instance judgment in relation to facts and law. However, the situation is different at the level of the Organization. Article17 (6) defines the appeal “shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel.” The Appellate Body, then, is a judge of law who considers violations of the rules of law by the Special Group. Its function is as close as possible to a court of appeal as is known in some national legal systems, such as the French system. We have the right to question the new system of the Appellate Body of the Dispute Settlement Mechanism of the World Trade Organization under the Marrakesh Accords, and the new features that distinguish it from the mechanisms of contemporary international justice, both procedural and functional.

2017 ◽  
pp. 1-10
Author(s):  
Tarek Yahiaoui ◽  

The process of dispute settlement at WTO has been delegated to independent entities: private groups that consider cases as first instance structures, and the Appellate Body that hears appeals for special group summaries. For its part, the dispute settlement body (DSB), the political structure composed of all members of the Organization and its primary task is the general administration of the dispute settlement and decision-making system. The recommendations contained in the reports of the Special Groups and the Appellate Body are binding on the parties to the dispute only after the dispute settlement body has adopted them. However, this process of adoption is now almost automatic; in order not to adopt a resolution it is necessary for all members to agree unanimously, according to a technique known as the "reverse consensus" or "negative consensus", which we do not yet know a similar in the international law. The political control exercised by the dispute settlement body remains generally theoretical, because the reverse consensus technique imposed almost as a decision-making mechanism. As long as the complainant insists on his complaint, it is inconceivable that the parties to the dispute are not convinced of the outcome of the dispute and raise a consensus not to adopt a particular report. In fact, if members have not collectively endorsed the abstracts or solutions of special groups or the Appellate Body, they have not prevented the adoption of any report. The appeal procedure is without doubt the most prominent and authentic new addition to the Organization's dispute settlement mechanism established by the Marrakesh Accords. The parties to the dispute seen by the Special Group can only appeal to the Appellate Body within a specified period of the date of the distribution of its report to the members of the Organization. The designation given to this body raises the question: the appeal is aimed at amending or canceling a judgment of the first instance judge by second-tier judges and article 17 (13) of the memorandum of agreement goes in the same context, stating that: The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel". Thus, the powers granted to the Appellate Body are not far from those granted to courts of appeal in national legal systems. However, this rapprochement is soon reaching its limit, because judicial practice in national systems gives the appellant the power to review first instance judgment in relation to facts and law. However, the situation is different at the level of the Organization. Article17 (6) defines the appeal “shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel.” The Appellate Body, then, is a judge of law who considers violations of the rules of law by the Special Group. Its function is as close as possible to a court of appeal as is known in some national legal systems, such as the French system. We have the right to question the new system of the Appellate Body of the Dispute Settlement Mechanism of the World Trade Organization under the Marrakesh Accords, and the new features that distinguish it from the mechanisms of contemporary international justice, both procedural and functional.


2020 ◽  
pp. 003232172097834
Author(s):  
Sijeong Lim ◽  
Hyo Won Lee

The World Trade Organization’s dispute settlement mechanism is based on either bilateral bargaining or third-party rulings by a panel or the Appellate Body. When do countries utilize the multilateral procedure, and under what conditions do they opt for a bilateral agreement? Departing from previous studies emphasizing the role of the complainant in shaping the course of the dispute settlement mechanism, this article offers an explanation based on the strategic choices of respondents. This study suggests that the domestic political interests of respondent governments determine the use of the dispute settlement mechanism’s multilateral track. We argue that respondent governments choose the multilateral track to seek political cover for domestically unpopular concessions to a complainant. Such cover is required when (1) the dispute at stake has high public salience and (2) the respondent faces an upcoming election. Our hypotheses are tested using World Trade Organization’s dispute cases from 1995 to 2017.


2018 ◽  
Author(s):  
Aleydis Nissen

There has been a polarised debate on the desirability of import restrictions to increase corporate accountability for child labour that occurs in global supply chains. Some scholars have indicated that states in favour of imposing import restrictions could sidestep this debate relying upon the perceptions that people in the importing market might have. They have based this argument on the case law of the World Trade Organization’s Dispute Settlement Mechanism (WTO DSM). The attitude-behaviour gap has, however, been largely overlooked in their analyses. This behavioural phenomenon provides an explanation as to why there is an inconsistency between what people value or believe and what they actually do. This essay revisits the WTO DSM's case law in order to determine whether such values or beliefs might justify import restrictions. On balance, this essay finds that the WTO DSM has not sufficiently taken the attitude-behaviour gap into account in its interpretation of Article III(4) and Article XX(a) 1994 General Agreement on Tariffs and Trade (GATT).


2021 ◽  
pp. 145-158
Author(s):  
Marie-Claire Cordonier Segger

In this chapter, it is argued that in the 2001 Doha Declaration launching the new trade negotiations and in subsequent dispute settlement decisions, the World Trade Organization (WTO) member States and dispute settlement mechanism (DSM) have made small steps to integrate social and environmental considerations into the work of the WTO, but progress is limited. In particular, certain exemptions have been expanded and clarified (more through subsequent disputes than through negotiations), States have agreed on frameworks for negotiations that could both liberalize trade in environmental goods and services and reduce subsidies that encourage over-fishing, and potentially also encourage greater cooperation on trade-related environment and social development challenges. Influential WTO disputes are canvassed, and concerns with regards to process and production methods (PPMs) and related technology transfer opportunities are discussed briefly. It is also demonstrated that these steps, as critiqued in legal scholarship, reveal real limits to the WTO’s progress.


2018 ◽  
Vol 5 (01) ◽  
Author(s):  
Kawal Gill ◽  
Panya Baldia

The paper seeks to comment on the efficiency and fairness of the World Trade Organization by examining its Dispute Settlement Mechanism. The study has attempted to achieve the same by focusing on the legal and economic analysis of ‘The European Communities – Regime for Importation, Sale and Distribution of Bananas Case’, a landmark judgement in the Dispute Settlement Body’s history that spanned two decades. The paper has analysed trade data from 1993-2016 to arrive at its conclusions and infer the legal rationale behind the verdict while scrutinizing the sectoral as well as overall economic impact of the case on the parties to the dispute.


Sign in / Sign up

Export Citation Format

Share Document