Mutually agreed solutions under the WTO Dispute Settlement Understanding: An Analytical Framework after the Softwood Lumber Arbitration

2011 ◽  
Vol 10 (3) ◽  
pp. 343-373 ◽  
Author(s):  
ALBERTO ALVAREZ-JIMÉNEZ
Keyword(s):  
Dispute Settlement ◽  
Analytical Framework ◽  
Settlement System ◽  
Trade Disputes ◽  
Applicable Law ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Intimate Relation ◽  
Dispute Settlement System

AbstractThe unprecedented enforcement of the mutually agreed solution (MAS) in the WTO Softwood Lumber disputes – but outside the WTO dispute settlement system – and the recent use of MAS to resolve important trade disputes should trigger a hard look at these dispute settlement instruments provided for by the DSU. This article seeks to provide a detailed framework of analysis of MAS under the DSU that allows the WTO dispute settlement system to adjudicate MAS-related disputes. WTO Members should not go outside the system to enforce MAS. The article illustrates that MAS can create binding obligations and that MAS are WTO law, given the explicit reference to them in the DSU, their intimate relation with the WTO-covered agreements and the requirement for compliance with these agreements. In addition, the article offers an interpretation of the DSU that allows panels and the Appellate Body to regard MAS as applicable law. This interpretation is offered in the view that there is no policy reason to sustain that these controversies – always fully related to WTO rights and obligations and framed under the corners of the covered agreements – have to be resolved by an adjudication system other than that of the WTO.

International Adjudication on Trial

2019 ◽  
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
Dispute Settlement ◽  
Analytical Framework ◽  
Detailed Examination ◽  
Settlement System ◽  
Trade Disputes ◽  
Wto Dispute Settlement ◽  
The World ◽  
Fresh Perspective ◽  
International Adjudication ◽  
Dispute Settlement System

Is the World Trade Organization (WTO) Dispute Settlement System (DSS) effective? How exactly is the effectiveness of this adjudicative system to be defined and measured? Is its effectiveness all about compliance? If not, what goals—beyond compliance—is the WTO DSS expected to achieve? Has it fulfilled these objectives so far, and how can their achievement and the system’s effectiveness be enhanced in the future? Building on a theoretical model borrowed from social science, this book lays down the analytical framework required to answer these questions, while crafting a revealing insider’s account of the WTO DSS—one of the most important and debated sites of the evolving international judiciary. Drawing on interviews with WTO adjudicators, WTO Secretariat staff, ambassadors, trade delegates, and trade lawyers, the book offers an elaborate analysis of the various goals steering the DSS’s work, the diverse roles it plays, the challenges it confronts, and the outcomes it produces. Through this insider look at the WTO DSS and detailed examination of landmark trade disputes, the book uncovers the oft-hidden dynamics of WTO adjudication and provides a fresh perspective on the DSS’s operation and the undercurrents affecting its effectiveness. Given the pivotal role the WTO DSS has assumed in the multilateral trading regime since its inception in 1995 and the systemic pressures it has recently come to face, this book makes an important contribution towards understanding and measuring the benefits (as well as the costs) this adjudicative body generates, while providing valuable insights into current debates on its reform.

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.

scholarly journals Introduction

2019 ◽  
Vol 18 (2) ◽  
pp. 169-172
Author(s):  
CHAD P. BOWN ◽  
PETROS C. MAVROIDIS
Keyword(s):  
Dispute Settlement ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Dispute Settlement System

The WTO dispute settlement system has come under severe criticism in recent times, which does not seem, for now at least, to affect its relevance. In terms of output, 2017 was yet another bumper year. We review eight cases that constitute the ‘last word’ of the dispute settlement system: we review exhaustively all Appellate Body reports, as well as all un-appealed panel reports.

Commercial stakeholders in international economic dispute resolution and the issue of adjudicatory independence

2017 ◽  
Vol 24 (4) ◽  
pp. 582-601 ◽  
Author(s):  
Joanna Jemielniak
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Trade Disputes ◽  
Commercial Arbitration ◽  
State Action ◽  
Softwood Lumber ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body

The article discusses the problem of influence exerted by commercial actors in international trade disputes and consequences of this phenomenon for positions adopted by adjudicators. It explores the role of commercial stakeholders inasmuch as they comprise a driving force behind state action, and examines procedural options available to those stakeholders. The issue of adjudicatory independence and neutrality is considered in the context of involved industries and their interests as the non-party spiritus movens behind WTO dispute settlement processes. Related procedural aspects, such as confidentiality/transparency of proceedings and the possibilities for participation of non-party actors, are also examined. It is argued that WTO litigation is often only one track among several available to the stakeholders in the pursuit of their interests. As a consequence, the problem of forum shopping is also raised. In this vein, the standards of the WTO Appellate Body in the area under discussion are set against those of investment and commercial arbitration (as the institutions and rules designed for the latter are also being used for trade controversies, as evidenced in the Softwood Lumber LCIA arbitrations). Consequently, the problem of establishing standards of adjudicatory independence is deemed a significant factor in strategic selection of the most advantageous forum for dispute resolution.

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.

The pandemic is delaying solutions to the most pressing problems of global trade while creating new challenges

2020 ◽  
pp. 22-29
Author(s):  
A. Portanskiy
Keyword(s):  
Global Economy ◽  
Dispute Settlement ◽  
Global Trade ◽  
Economic Regulation ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
New Challenges ◽  
Dispute Settlement System

The article raises the question of the role of Global economic regulation institutions, in particular, the WTO after the Covid-19 pandemic. The author considers the aggravated modern problems of the WTO, and focuses on the crisis of the Organization that arose in December 2019 in connection with the suspension of the appellate body functioning in the WTO dispute settlement system. The author also tries to identify new challenges of the XXI century for the Global economy, regulatory institutions, as well as for Russia.

Determining a “Reasonable” Implementation Timeline for Developing Countries in WTO Disputes: An Appraisal of Special Treatment Commitments in DSU Article 21.3 (c) Arbitrations

2013 ◽  
Vol 12 (1) ◽  
pp. 31-47 ◽  
Author(s):  
Khorsed Zaman
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Special Treatment ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Different Types ◽  
Implementation Time ◽  
Dispute Settlement System ◽  
Settlement Of Disputes

Abstract The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) prescribes three different types of arbitration which are ancillary to the Panel and Appellate Body functions of the WTO dispute settlement system (DSS). These are the arbitrations for determining the implementation timeline under Article 21.3 (c) of the DSU and two other types of arbitration under Articles 21.5 and 22.6. This article focuses on some specific approaches and functions of Article 21.3 (c) arbitrations and examines the procedural actions which are related to determining a suitable implementation time for developing countries. It investigates the consistency and coherence of practice in selected arbitral awards in which developing countries claimed “particular attention” either as complainant or as implementing parties. This article points out that the lack of specific guidelines in the DSU is the substantial cause for arbitrators’ noncompliance with Article 21.2 provisions in Article 21.3 (c) arbitrations, which questions the procedural fairness of such arbitrations. This situation, amongst others, reiterates the urgent necessity to amend the relevant DSU rules.

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.

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