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

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.

No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes

The article argues that the Law of the Sea Convention’s (LOSC) dispute settlement system (DSS) is attuned only to certain types of disputes (bilateral) and does not allow for the effective enforcement of obligations erga omnes reflected in the Convention. Mechanisms established to address enforcement of communitarian norms specifically are scarce in international law and the traditional bilateral structure of adjudicatory dispute settlement circumscribes the ability of states to act as advocates of the international community to which obligations erga omnes are owed. The article identifies the obligations erga omnes reflected in the LOSC and assesses the extent to which its dispute settlement framework is suited to address their breach. It is submitted that some of the community interest obligations of the LOSC are “left behind” by the function of the system itself.

Non-Compliance in WTO Dispute Settlement: Assessing the Effectiveness of WTO Retaliation from Its Purpose(s)

<p>The issue of non-compliance with the Dispute Settlement Body (DSB) recommendations and rulings emerges when the violator state fails to bring its inconsistent measures into conformity with its WTO obligations within a reasonable period of time. Compensation and suspension of concessions or other obligations (retaliation) are the only remedies provided under WTO law for cases of non-compliance. Many academic writings, as well as statements from WTO Members, have demonstrated pessimism concerning the effectiveness of these remedies, particularly retaliation. The central point of this thesis concerns three main issues: the problems of WTO retaliation, the question of the effectiveness of retaliation, and the purposes of retaliation. This thesis aims to provide another perspective, besides the common “harm-resulted” perspective, for assessing the effectiveness of WTO retaliation. Accordingly, it provides several approaches: (1) identification of the purpose of retaliation in order to assess its effectiveness; (2) analysis of the enquiry whether there are in fact several purposes of WTO retaliation; (3) examination of the question whether the presence of retaliation purposes other than that inducing compliance is within the ambit of WTO law; (4) consideration of retaliation as a way of inducing a mutually agreeable solution; and (5) consideration of the question whether any deviation from strict compliance would undermine the WTO dispute settlement system. On the basis of extensive research on the purposes of WTO retaliation, namely through interpreting Article 22 of the DSU, examining the design of WTO treaty, assessing the academic writings/debates as well as the statements of arbitrators; several conclusions are made, of which the main one is that inducing compliance is not the sole purpose that WTO retaliation can pursue. Therefore compliance is not the only benchmark by which the effectiveness of WTO retaliation should be measured.</p>

Non-Compliance in WTO Dispute Settlement: Assessing the Effectiveness of WTO Retaliation from Its Purpose(s)

<p>The issue of non-compliance with the Dispute Settlement Body (DSB) recommendations and rulings emerges when the violator state fails to bring its inconsistent measures into conformity with its WTO obligations within a reasonable period of time. Compensation and suspension of concessions or other obligations (retaliation) are the only remedies provided under WTO law for cases of non-compliance. Many academic writings, as well as statements from WTO Members, have demonstrated pessimism concerning the effectiveness of these remedies, particularly retaliation. The central point of this thesis concerns three main issues: the problems of WTO retaliation, the question of the effectiveness of retaliation, and the purposes of retaliation. This thesis aims to provide another perspective, besides the common “harm-resulted” perspective, for assessing the effectiveness of WTO retaliation. Accordingly, it provides several approaches: (1) identification of the purpose of retaliation in order to assess its effectiveness; (2) analysis of the enquiry whether there are in fact several purposes of WTO retaliation; (3) examination of the question whether the presence of retaliation purposes other than that inducing compliance is within the ambit of WTO law; (4) consideration of retaliation as a way of inducing a mutually agreeable solution; and (5) consideration of the question whether any deviation from strict compliance would undermine the WTO dispute settlement system. On the basis of extensive research on the purposes of WTO retaliation, namely through interpreting Article 22 of the DSU, examining the design of WTO treaty, assessing the academic writings/debates as well as the statements of arbitrators; several conclusions are made, of which the main one is that inducing compliance is not the sole purpose that WTO retaliation can pursue. Therefore compliance is not the only benchmark by which the effectiveness of WTO retaliation should be measured.</p>

Diffusion and Decentralized Bargaining in International Organizations: Evidence from Mercosur's Dispute Settlement Mechanism

How and with what effects do institutions diffuse between international organizations (IOs)? An emerging literature extends a key insight of the study of diffusion processes among states to the international level, establishing that the adoption of institutions in IOs is regularly conditioned by the choices of other IOs. Yet, this literature neglects a key contextual difference between the two settings: unlike in the hierarchically structured organizations that have dominated the literature on diffusion, institutional creation, and change in IOs are the result of decentralized bargaining among sovereign governments. This paper develops a heuristic model that shows how diffusion between IOs shapes decision-making within them through its impact on the institutional preferences of individual governments. The model establishes that, unlike in diffusion processes among states, convergence is an unlikely outcome of diffusion between IOs. By implication, studies that take institutional convergence as their starting point are likely to underestimate the pervasiveness of diffusion effects. I demonstrate these arguments with a case study of the establishment of a regional dispute settlement system in Mercosur, a regional organization in Latin America.

TRIPS Pluralism

The article explains that the interpretation of the TRIPS Agreement by WTO dispute-settlement panels and the Appellate Body has palpably shifted since the establishment of the WTO in 1995. Some of this shift is also arguably present in disputes concerning other WTO instruments. This progressive shift comes at a time when key debates about TRIPS waivers are taking place on the rue de Lausanne, namely a first for the COVID-19 pandemic and a second possible one for environmental protection measures related to climate change. According to the proposed pluralist analysis of TRIPS, it was less likely as of 2020 that the WTO dispute-settlement system would find unjustifiable inconsistencies between WTO commitments, on the one hand, and measures to protect public health or mitigate climate change, on the other hand. Whether future Appellate Body will follow that jurisprudence is an open question. Though the analysis contained in the article may make the COVID-related TRIPS waivers doctrinally unnecessary and allow Members to take measures now, its main aim is to inform the debates about the waivers and the future interpretation of the TRIPS Agreement, including the three-step test.

Research on Labor Market Institutional Environment and Labor Agglomeration—Analysis Based on Dynamic Spatial Panel Data

The institutional environment not only has a great impact on economic development but also has a certain impact on labor agglomeration. This paper explains the phenomenon of labor agglomeration from the perspective of the labor market institutional environment. Taking the labor market institutional environment including social contract environment and labor contract environment as the premise, it is considered that a good labor institutional market can promote labor agglomeration and technological progress can stimulate the agglomeration of highly-skilled talents through theoretical analysis. Based on the provincial panel data from 2001 to 2017, the empirical analysis is conducted to verify the relevant factors through the dynamic spatial Durbin model. The paper finally puts forward some policy suggestions to maintain a good institutional environment of the labor market, including that the local government should continue to improve the labor dispute settlement system, strengthen the protection of labor rights and interests, and enhance the institutional environment of the regional labor market.

Multilateral Investment Court – a Cure for Investor-State Disputes Under Extra-EU International Investment Agreements?

Both branches of international economic law – international investment and trade law are currently in crisis. Many reforms have been proposed to cure the shortcomings of their dispute resolution mechanisms. Distinctive though they are, it seems that the newest EU’s proposal to establish the Multilateral Investment Court is heavily inspired by the dispute settlement system which exists in the World Trade Organization. The new system has been introduced to replace the investor-State dispute settlement mechanism existing in most investment treaties. In this article, the author assesses the objectives of the reform through the prism of successes and failures of the WTO dispute settlement system.