General Principles of Procedural Law in the Practice of the WTO Appellate Body

2021 ◽  
pp. 1-32
Author(s):  
Mariana Clara de Andrade
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Case Law ◽  
International Courts ◽  
Procedural Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
International Law Commission ◽  
Domestic Law

Abstract The method of identification of general principles and their function as a source of law have long been object of doctrinal debate. This topic is now under the programme of work of the International Law Commission. Relatedly, international courts and tribunals have relied on general principles of procedural law derived from national legal systems in their practice and reasoning, but the methodology employed by adjudicators in importing these sources from domestic law remains obscure. This research examines the use of general principles of procedural law in WTO dispute settlement, in particular by its Appellate Body. The aim is two-fold: first, to study the methodology employed in the identification of general principles of procedural law in the case law of the WTO Appellate Body; second, to examine the functions performed by general principles in the practice of this international jurisdiction.

scholarly journals FTA Law in WTO Dispute Settlement: Peru–Additional Duty and the Fragmentation of Trade Law

2017 ◽  
Vol 16 (2) ◽  
pp. 303-326 ◽  
Author(s):  
GREGORY SHAFFER ◽  
L. ALAN WINTERS
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Free Trade Agreements ◽  
International Treaties ◽  
Public International Law ◽  
Trade Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Political Choices ◽  
Wto Appellate Body

AbstractThere is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision inPeru–Additional Duty on Imports of Certain Agricultural Productsis important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.

scholarly journals Twenty years of the WTO Appellate Body’s “fragmentation jurisprudence”

2015 ◽  
Vol 14 (3) ◽  
pp. 116-125 ◽  
Author(s):  
Andrew Lang
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Boundary Work ◽  
Case Law ◽  
Public International Law ◽  
Content Type ◽  
Appellate Body ◽  
Legal Method ◽  
Wto Dispute Settlement ◽  
Fragmentation Of International Law

Purpose – This paper aims to reflect on the first 20 years of the World Trade Organization (WTO) Appellate Body’s jurisprudence, specifically as it relates to questions of normative fragmentation. It provides an overview of some of the highlights of the WTO’s jurisprudence as it pertains to fragmentation, with particular focus on the use of general public international law in the context of the WTO dispute settlement. Design/methodology/approach – The paper adopts a traditional interpretive legal method, applied to the case law of the WTO. Findings – The paper suggests that the Appellate Body’s approach has not been driven by the institutional myopia and normative closure of which they are sometimes accused, but rather a judicial sensibility which (rightly or wrongly) valorises the virtues of modesty, caution and self-restraint. Originality/value – The paper contributes to the literature on the causes of fragmentation, drawing attention in particular to the importance of international lawyers and tribunals in contributing to fragmentation, not just responding to it. The fragmentation of international law is, in part, the product of ongoing boundary work, and the “fragmentation jurisprudence” of the Appellate Body has predictably involved boundary work of a particularly intense kind.

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.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

1999 ◽  
Vol 48 (1) ◽  
pp. 199-206 ◽  
Author(s):  
Asif H. Qureshi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Market Access ◽  
The United States ◽  
Consultation Process ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Wto Appellate Body ◽  
Dispute Settlement System

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

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.

Precedent in the WTO: Retrospective Reflections for a Prospective Dispute Settlement Mechanism

2020 ◽  
Vol 11 (2) ◽  
pp. 262-277
Author(s):  
Mariana Clara de Andrade
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Legitimacy Crisis ◽  
Settlement Mechanism

Abstract Several factors triggered the legitimacy crisis which paralysed the WTO Appellate Body in December 2019. This article focuses on one of them: the criticism expressed by the United States that the ‘Appellate Body claims its reports are entitled to be treated as precedent’. This work describes the origins of the problem and examines the issue of the precedential value of adopted reports within the WTO dispute settlement. It argues that the problem cannot be addressed through textual attempts to better define the value of precedent, as some have suggested, but can be alleviated through the practice of adjudicators. Moreover, it argues that the criticisms regarding the precedential value of past reports is due to the inherent hierarchy ensuing from the existence of an appeals organ. Therefore, the demise of the Appellate Body may weaken the precedential value of past adopted reports.

Introduction

2020 ◽  
pp. 1-4
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Criminal Tribunal ◽  
International Investment ◽  
International Investment Law ◽  
Wto Dispute Settlement ◽  
Rules And Principles ◽  
Dispute Settlement System ◽  
Definition Of ◽  
International Law Commission

The Introduction describes the role of international attribution rules and principles in connection with the meaning of ‘State’ under international law. It addresses how this study on attribution is innovative and helpful in relation to various issues. As to public international law, it deals with attribution of the acts or omissions of ‘independent’ State organs exercising functions of a regulatory or administrative nature (such as central banks and independent authorities), the definition of ‘governmental authority’ for the purposes of attribution of conduct of parastatal entities, and the determination of the thresholds of State ‘control’ either on de facto organs, on one side, or on ‘private’ individuals, on the other side. As to international investment law and arbitration, it is notably relevant to clarify the operation of the dialectics between lex generalis (customary international law) and lex specialis (international investment treaties) in relation to attribution issues. The Introduction also clarifies that the analysis that is found in this book is based on the practice of early arbitrations, the Permanent Court of International Justice (PCIJ), the International Court of Justice (ICJ), the Iran–US Claims Tribunal, the International Criminal Tribunal for the Former Yugoslavia (ICTY), investor–State arbitration, and the World Trade Organization (WTO) dispute settlement system. This means that the practice of other international courts and tribunals that is relied on (as to the attribution of conduct to a State) by the International Law Commission (ILC) in its Commentaries to Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) is not dealt with in this book.

scholarly journals 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

2021 ◽  
Vol 24 ◽  
pp. 1-46
Author(s):  
Nnamdi Stanislaus Umenze
Keyword(s):  
Dispute Settlement ◽  
World Trade Organisation ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Root Cause ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
International Dispute ◽  
Wto Appellate Body ◽  
Dispute Settlement System

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.

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