Conclusion

The present chapter concludes the work. It sums up the key findings of the study while discussing the results emerging from a comparative analysis of the three categories of disputes examined throughout the book. The chapter then revisits the central arguments put forth in the book and articulates the lessons to be learned for the study of the goals, operation, and effectiveness of the World Trade Organization (WTO) Dispute Settlement System (DSS), and of international courts more broadly. It also discusses some of the insights to be offered with respect to possible institutional changes or reforms of the WTO DSS, with a view to ensuring the system’s future effectiveness. The chapter closes with several observations that go beyond effectiveness, pertaining to the costs and unintended consequences attendant on more effective and empowered international adjudication.

Conclusions to Part II

When asked what, if anything, distinguishes US-Clove Cigarettes from other disputes filed with the World Trade Organization (WTO) Dispute Settlement System (DSS), an Appellate Body (AB) Secretariat staff member replied: ‘A number of things and nothing at the same time’.1 This answer aptly captures the story of trade-and disputes and the DSS’s goal-attainment patterns in such cases, as revealed in this second part of the book. On the one hand, as in all WTO disputes, the DSS appears to be engaged in this class of cases in the routine legal exercise of law application and interpretation while pursuing its multiple goals, including rule-compliance and dispute resolution. On the other hand, as a WTO practitioner remarked when discussing the ‘interpretative exercise’ carried out by the DSS in trade-and disputes:...

Reconceptualizing Judicial Effectiveness at the WTO

Drawing on the rich social science literature on organizational effectiveness, this chapter puts forth the theoretical and methodological foundations of the WTO Dispute Settlement System (DSS) goal-based effectiveness framework. After discussing the main approaches developed in the social sciences to defining organizational effectiveness, the chapter explains the reasons for selecting the goal-based approach to serve as the basis for the study into the effectiveness of the WTO DSS. The chapter then reviews the central concepts associated with this approach and their application to the world of WTO adjudication, while focusing on organizational goals, goal multiplicity, goal conflict, and goal shifting. Finally, the chapter discusses several methodological determinations that should be made before applying the proposed WTO DSS goal-based effectiveness framework. These include the selection of the goal setters to inform the DSS’s effectiveness analysis, the choice of performance indicators, and the determination of the time frame in which effectiveness is to be measured.

The Multilateral Trade System Goes Bananas

The transatlantic Bananas dispute rambled on in the multilateral trade system for almost two decades. The convoluted conflict, standing at the centre of this chapter, provides a useful starting point for studying the goal-attainment efforts exhibited by the World Trade Organization (WTO) Dispute Settlement System (DSS) in perennial disputes, together with the goal-shifting and goal-conflict patterns characterizing such cases. The chapter first provides a brief background of the Bananas case. It then recounts the dispute’s major turning points in the multilateral trading system, and identifies the main factors rendering the conflict so prolonged and resistant to resolution. On these foundations, the chapter turns to a close goal-based reading of EC-Bananas, tracing the DSS’s goal-attainment efforts and the goal shifts marking this lengthy dispute. Thereafter, the chapter examines the resulting conflicts between DSS goals and the mixed, noncompliant outcomes ultimately produced in EC-Bananas, while assessing their ramifications for an analysis of the system’s effectiveness.

Legitimating Behind the Smoke Screen in the Battle Over Clove Cigarettes

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.

Goals in Context

Under the goal-based approach advanced in the book, a methodical and comprehensive investigation into the effectiveness of the World Trade Organization (WTO) Dispute Settlement System (DSS) ought to start from a fundamental question: what are the goals (i.e. the desired outcomes) this system is to generate? With a view to establishing the relevant context for identifying and analysing these goals, the chapter provides a brief overview of the origins and evolution of the WTO DSS. It also describes the system’s current design and procedures. The chapter closes with some reflections on the hybrid legal/diplomatic, bilateral/multilateral character of the WTO DSS, reflected in the system’s structure and procedures as well as in its goals. This dual character, as illustrated later in the book, nurtures many of the shifts, conflicts, and subsequent trade-offs exhibited between the system’s goals throughout its operations.

The Transatlantic Conflict Over Beefed-Up Beef

Alongside EC-Bananas, the transatlantic trade feud over hormone-fed beef constitutes another informative case study for investigating how the challenges invoked in perennial disputes affect the motivations for and the practice of disputing at the World Trade Organization (WTO), generate shifts and conflicts between the goals of the WTO Dispute Settlement System (DSS), and shape the outcomes it ultimately yields. The chapter first recounts the basic facts of EC-Hormones and the dispute’s major milestones in the multilateral trade system. It then distils the factors that rendered EC-Hormones so resistant to compliance and resolution. On this basis, the chapter turns to an in-depth, goal-based analysis of the dispute, exploring the goal shifting characterizing the DSS’s operation throughout the conflict and the heightened role the system played along the fine line between law and politics. Finally, the chapter examines the mixed outcomes delivered in the case while addressing the goal conflicts those outcomes represent and their implications for the DSS’s effectiveness assessment.

Trade Wars, Trade-Offs, and the International Rule of Law

This chapter sets the scene for the analysis of the operation and goal-attainment patterns of the World Trade Organization (WTO) Dispute Settlement System (DSS) in ‘perennial’ disputes, the dispute category at the centre of Part III, which provides another instructive venue for exploring whether and how the unique challenges posed before the DSS in this class of cases shape stakeholders’ expectations from the DSS, shift the emphasis among its various goals, and stimulate trade-offs between them. After discussing the main challenges associated with perennial disputes, the chapter situates these conflicts within the broader historical and institutional context of the multilateral trading system. The chapter then challenges the common appellation of such cases as ‘wrong’ cases due to their heightened prospects of noncompliance, while pointing to the shift away from compliance taking place in such conflicts and the enhanced role the DSS comes to play at the interstice between law and politics, with a view to achieving other organizational objectives.

Linkage Disputes and the Enduring Quest for Legitimacy

This chapter sets the scene for the analysis of the Dispute Settlement System (DSS) operation and goal-attainment efforts in ‘linkage’ (or ‘trade-and’) disputes, the dispute category at the centre of Part II. As the chapter explains, linkage disputes have long subjected the World Trade Organization (WTO) and the DSS to intense legitimacy challenges; they thus form an instructive site for examining how the systemic challenges raised in such cases shape DSS goal-attainment efforts, motivate shifts and trade-offs between its goals, and, in consequence, affect DSS effectiveness in realizing its manifold objectives. The chapter first clarifies the notion of legitimacy as employed here, and situates the story of linkage disputes in the broader historical and institutional context of the multilateral trading system. It then unpacks the various legitimacy challenges encapsulated in linkage disputes while highlighting the shifts these challenges seem to generate between DSS goals, engaging the system in a heightened quest after its legitimization objectives.

The WTO Dispute Settlement System

The proposed goal-based approach, which ties effectiveness to goals, requires an in-depth inquiry into the question of what aims underlie the World Trade Organization (WTO) Dispute Settlement System (DSS), the spectrum of functions it should play, and the nature of the relations between them. The present chapter maps these multiple aims as prescribed for the DSS by its mandate providers while probing their complementary and contradictory relationships. In so doing, the chapter lays down the substantive building blocks of the WTO DSS’s goal-based effectiveness framework against which the system’s performance is to be evaluated. In analysing the DSS’s goal structure, the chapter begins with the system’s ultimate ends—the overarching purposes the DSS is expected to fulfil in the long-run—which frame the broad mission it is designed to achieve. It then follows with the system’s more specific, intermediate goals, those which serve as means for realizing the former, more general, open-ended objectives.