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.

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.

Conclusion

2019 ◽  
pp. 312-332
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
Comparative Analysis ◽  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Unintended Consequences ◽  
Institutional Changes ◽  
Wto Dispute Settlement ◽  
The World ◽  
International Adjudication ◽  
Dispute Settlement System

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.

scholarly journals The Reflection of WTO Brazilian Dispute Settlements on Domestic Law: A Place to Legal Pluralism?

Eudaimonia ◽  
2021 ◽  
pp. 137-146
Author(s):  
Monique Libardi ◽  
Patricia Glym
Keyword(s):  
Dispute Settlement ◽  
Trading System ◽  
Trade Disputes ◽  
Trade Law ◽  
International Trade Law ◽  
Wto Dispute Settlement ◽  
The World ◽  
Current Scenario ◽  
Dispute Settlements ◽  
Dispute Settlement System

International trade law, followed by the development of legal mechanisms for regulation of multilateral trading system, from General Agreement on Tariffs and Trade – GATT (1948–94), Uruguay Round (1986–94) to World Trade Organization – WTO (1995) dispute settlement system is the current scenario of the world economy transactions. This paper aims to analyze whether Brazilian activism in the world trading system may be identified in the WTO Dispute Settlement dealing with the concept of direct effect on international law. Since 1995, Brazil has been an assiduous claimant at the WTO and at the South American Common Market (MERCOSUR) dispute mechanism. However, explaining Brazilian participation at the WTO Dispute Settlement Body (DSB) requires a collision between the Brazilian private sector and the political relevance that trade disputes have acquired.

Substance and Style—How the WTO Adjudicators Legitimize their Decisions

2018 ◽  
Author(s):  
Christiane Gerstetter
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Judicial Decision ◽  
Settlement System ◽  
Member States ◽  
Judicial Decisions ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

This chapter analyses how the World Trade Organization (WTO) dispute settlement bodies legitimize their decisions and by implication also the WTO Dispute Settlement System as well as the WTO as an institution more broadly. The author argues there are two relevant dimensions for understanding how judges legitimize judicial decisions: the substantive outcomes of cases, that is who wins and loses and what interpretations are adopted, and the way a judicial decision is justified. She concludes that the WTO dispute settlement bodies act strategically in order to win the acceptance of the member states, and ultimately legitimize this dispute settlement system as a judicial entity.

Legitimating Behind the Smoke Screen in the Battle Over Clove Cigarettes

2019 ◽  
pp. 127-160
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Goal Attainment ◽  
Dispute Settlement ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System

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.

The WTO Dispute Settlement System

2019 ◽  
pp. 62-88
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Building Blocks ◽  
Goal Structure ◽  
Settlement System ◽  
Long Run ◽  
Wto Dispute Settlement ◽  
System P ◽  
The World ◽  
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.

The Effectiveness of the World Trade Organization’s Dispute Settlement System

2017 ◽  
Author(s):  
Soo Yeon Kim
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Future Research ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Trade Disputes ◽  
Trade Regime ◽  
Multilateral Trade ◽  
The World ◽  
Dispute Settlement System

The World Trade Organization (WTO) dispute settlement system is its judicial arm and enforcement mechanism, designed to assist members in resolving trade disputes that arise between them. Its design reflects a move toward greater legalization in trade governance under the multilateral trade regime. Compared with the dispute settlement system of its predecessor, the General Agreement on Tariffs and Trade (GATT), the WTO’s dispute settlement provided a more structured and formal process with clearly defined stages and more discipline in the timetable of the dispute so as to resolve trade disputes as efficiently as possible. Most important, the WTO’s dispute settlement provides for virtually automatic adoption of panel rulings: a respondent losing a case can block the adoption only if it can persuade all members of the WTO not to do so. The legal basis for the WTO’s dispute settlement system is the Dispute Settlement Understanding (DSU), which provides the principles and procedures by which members may bring their trade disputes to the multilateral trade regime for resolution. Overseeing the dispute settlement process is the Dispute Settlement Body (DSB), which consists of all WTO members and meets regularly to receive and to adopt reports of disputes at their various stages of progress. How effective is the WTO’s dispute settlement mechanism? Effectiveness can be conceptualized as success in attaining the objectives of the dispute settlement under the WTO in three areas: the efficiency of dispute settlement; inclusiveness of the dispute settlement process, especially as it concerns developing country participation; and compliance with legal obligations resulting from arbitration. The existing scholarship on this topic features key debates and frontiers for future research on firms and global production networks/value chains that have the potential to advance our state of knowledge concerning this “crown jewel” of the multilateral trade regime.

scholarly journals Introduction: Anatomy of the WTO Impasse

2018 ◽  
Vol 112 ◽  
pp. 315-316
Author(s):  
Kathleen Claussen
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
Uruguay Round ◽  
Major Change ◽  
Settlement System ◽  
Trade Disputes ◽  
The World ◽  
The Creation ◽  
Dispute Settlement System

With the creation of the World Trade Organization (WTO) in 1995, major changes were made to the dispute settlement system that had previously governed international trade disputes. Prior to the WTO, the dispute settlement system that had evolved under the General Agreement on Tariffs and Trade (GATT) was widely believed to suffer from certain structural weaknesses. One perceived weakness was that the establishment of a dispute settlement panel or the adoption of a panel's report required a positive consensus of all the GATT contracting parties, effectively allowing respondents to block losing outcomes against themselves. Thus, one major change that resulted from the Uruguay Round of negotiations (which led to the creation of the WTO) was the replacement of the positive consensus rule with a negative consensus rule such that to block establishment of a panel or adoption of a panel report, all WTO members have to agree not to establish or not to adopt the report.

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