Constructing Alternative Discourse Power Amid the Paralysis of WTO Dispute Settlement Mechanism: A Case Analysis on the China International Commercial Court

This paper explores the changing status of developing countries under the World Trade Organization (WTO) Dispute Settlement Mechanism (DSM). Based on the analysis of WTO dispute dates for the last 14 years, we find that developing countries' participation in the WTO DSM has increased significantly since 2001, which implies their successful adaptation to the new legal system. In spite of concerns regarding various disadvantages on the part of developing countries, such as insufficient legal resources and biased decisions unfavorable to developing countries, the dispute outcome demonstrates that many developing countries have successfully defended their interests as complainants or defendants under the WTO DSM, and that there is no significant bias in the operation of the court that is unfavorable to developing countries. In a broader aspect, this study helps us understand the distributive consequences of the legalized dispute settlement system of the WTO.

When conducting trade activities, due to the needs of countries' national interests or due to the general international context, it is inevitable that some acts will be used to disrupt the balance of world trade transactions, thus causing conflicts between two or more nations. If a dispute arises under the framework of the World Trade Organization (WTO) agreement, one party will be deemed to be in breach of the WTO agreement, and the injured party will resort to the WTO Dispute Settlement Body(DSB), and if the "losing party" does not fulfill the agreement, then the "winning party" will request the WTO Dispute Settlement Body to retaliate against it. If the "losing party" does not fulfill the agreement, then the "winning party" will request the DSB to authorize retaliation against it, to stop the behavior of the defaulting party and get certain compensation. Therefore, the retaliation system of the WTO dispute settlement mechanism is of great significance to maintaining the international economic order. The establishment of this system is of great practical significance for resolving disputes between disputing parties and achieving the rebalancing of the international economic order. However, along with the continuous occurrence of various dispute cases, and in the increasingly frequent use of the WTO panel members, member states and academics have gradually recognized certain shortcomings of the retaliation system, resulting in this system for certain violations of the agreement, often helpless. In this regard, all countries have improved the retaliation system under the WTO dispute settlement mechanism from their own or overall interests. This paper discusses the shortcomings of the retaliation system in the WTO dispute settlement mechanism and then makes some suggestions on how to modify and improve it.

The developed and developing members of the World Trade Organization (WTO) are deeply divided on the concept, scope, and beneficiaries of the special and differential treatment (SDT) provisions. The division was revealed in the Committee on Trade and Development meetings, where developed members rejected the Group of 90's proposals to strengthen and operationalize SDT provisions in WTO agreements. This article focuses on the SDT provisions in the Dispute Settlement Understanding (DSU), positing that the provisions are ineffective in upholding the WTO's development objectives. It analyses the extent to which the needs and circumstances of low-income developing countries and least-developed countries have been considered by the WTO adjudicating bodies through the application and interpretation of SDT provisions in the DSU. The article seeks to reimagine SDT provisions’ role in the DSU through secondary lawmaking and progressive treaty interpretation to ensure development is integrated into the WTO's Dispute Settlement Mechanism.

In today’s rapid economic development, trade exchanges between countries are increasingly close, and there are inevitable trade frictions that follow as a consequence. The World Trade Organization (WTO) dispute settlement mechanism (DSM) has become a predominant choice to deal with trade frictions for majority of the WTO member states. As part of the process of applying the Sino-US trade friction to the WTO DSM, the rise of US trade protectionism has caused serious damage to the WTO DSM. Also, the DSM similarly exposes its own inherent defects. Hence, the research on improvement of the WTO DSM under the background of trade friction has profound practical value. Based on this background, this paper proposes a framework for the effective evaluation of WTO DSM based on the artificial neural network. The contributions of the paper include the following: (1) Introduction of domestic and foreign scholars’ research on different issues in the WTO DSM, wherein the retaliation mechanism is introduced in detail. Also, it is conducive for further deepening of the purpose and significance of the retaliation system in the WTO DSM. (2) The characteristics and structure of the CNN are introduced, and a suitable evaluation system for analyzing the impact of WTO DSM is constructed. Further, an evaluation model based on the CNN is proposed. (3) As per the dimension principle of CNN interlayer calculation, the network structure parameters are selected considering an optimal comprehensive evaluation index of the network. The results verify the effectiveness of the proposed method. Finally, when compared with the other state-of-the-art network models, it is found that CNN generates the highest evaluation accuracy.

The research aims to discuss a shift from unilateralism to multilateralism in the process of mediating international intellectual property (IP) disputes particularly referring to the World Trade Organization (WTO). It focuses on the history and previous actions of major economies and the background to the establishment of the WTO's Dispute Settlement Mechanism (DSM). It explains several major legal problems including conflicts of jurisdiction, inequality of IP protection between participating countries, and existing gaps in IP protection because of the fast development of technologies. Concerns about financial aspects are also analyzed including litigation costs, simultaneous legal proceedings in different countries, and decreased economic activity as a consequence of inadequate IP protection. The research also looks at the contribution of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in handling IP disputes discusses the use of punitive damages and analyses how different territories have applied punitive damages as a tool of compliance and enforcement. Thus, using specific examples of the United States, European Union member states, and India involved in disputes with China, the research assesses the role of the WTO's DSM in addressing these issues. Therefore, the results shed more light on the WTO's functions to increase awareness of compliance with the international IP standards to improve the legal and financial performances of the parties involved and facilitate a stable global trading environment. The research presents some recommendations for the existing situation including increasing the speed of the dispute settlement procedures and strengthening cooperation with other international organizations towards betterment of the IP protection.

What role should international trade rules and the World Trade Organization (WTO) play in the protection of the environment? While many environmentalists argue that trade rules and procedures must be made more green, many trade proponents fear that the international trading system will be undermined by extreme demands of environmentalists. In this essay, Gary Sampson scrutinizes these contending views and assesses the effects of trade liberalization on the environment; the role of the WTO's dispute settlement mechanism; the potential impact of WTO rules, including those dealing with production processes; and the relationship that should exist between the WTO and specific multilateral environmental agreements. In his discussion of these issues, Sampson puts forward a priority agenda for trade and environmental ministers and proposes ways to enhance the WTO's environmental protection role and strengthen the trading system at the same time.

What determines states' decision to use international litigation to challenge potential violations of World Trade Organization (WTO) rules? In the face of growing number of foreign trade barriers and limited resources, states must take into account a number of factors before resorting to inter-state litigation at the WTO. Such considerations involve a complex litigation strategy from officials that act as gate keepers to initiate disputes at the WTO's dispute settlement mechanism. Using expanded data that include the universe of potential disputes for the United States (U.S.) between 1995 and 2012, we examine the degree to which strategic concerns influence both the decision of the U.S. to launch a dispute and the decision of the partner state to acquiesce or stand firm. We find evidence that the US takes into account the likelihood of both favorable judgments from the WTO and compliance by the defendant in deciding whether to challenge a trade barrier formally.

Under President Trump, the United States abdicated its traditional leadership role in the trading system, abandoning multilateralism for aggressive unilateralism and launching an active assault on the World Trade Organization (WTO). Most strikingly, the US blocked appointments to the Appellate Body, jeopardizing the WTO's dispute settlement mechanism. With the trade regime in crisis, a key question has been whether other states would have the will and capacity to lead system-preserving initiatives. While most attention has focused on whether China—widely seen as the chief hegemonic challenger to the US—would assume the mantle of leadership, there has been considerable scepticism about the European Union's capacity to exercise leadership amid the crisis. The EU has generally been seen as punching below its weight in terms of leadership at the WTO. In this article, however, I argue that it is the EU, rather than China, that has taken the lead in advancing concrete initiatives directed at defending and maintaining the multilateral trading system. The EU led the creation of an interim appeals arrangement to replace the defunct Appellate Body—in effect, creating an ‘Appellate Body minus the US’. Although the rules-based multilateral trading system remains under threat, it is the EU, not China, that is acting as a system-preserving power, leading efforts to defend the established order.

When the World Trade Organization (WTO) came into being in 1995, its dispute settlement mechanism (DSM) was widely heralded as the ‘jewel in the crown’. Sixteen years later, the DSM has moved further towards centre stage. Public attention has increasingly turned to the ways in which the WTO has dealt with trade disputes. Similarly, the academic study of the litigation mechanisms of the WTO has grown substantially. This article describes how the DSM works, notes the key differences from the older General Agreement on Tariffs and Trade dispute mechanism, and discusses some trends in WTO dispute settlement. After a brief overview of the workings of the DSM, it addresses major conceptual and theoretical issues associated with the DSM, including the fundamental question of why international trade agreements need dispute settlement provisions, and what shape might they take. The article also provides an overview of scholarship on major questions on the WTO's DSM, such as legalization, dispute initiation, and third party litigation.

On 11 December 2001, China officially became a Member of the World Trade Organization (WTO) after years of negotiations. The paper shows how a major developing country has used the WTO dispute settlement system by examining China’s participation in the WTO dispute settlement mechanism from its entry through 31 December 2010. It provides a comprehensive analysis of the WTO dispute cases in which China has participated as a complainant, a respondent, or a third party.

Since 2017, the United States (US) and other World Trade Organization (WTO) members violate their legal duties and democratic mandates given by national parliaments to maintain the WTO Appellate Body (AB) as legally prescribed in Article 17 of the WTO Dispute Understanding (DSU), i.e. as being ‘composed of seven persons’, with vacancies being ‘filled as they arise’. This contribution argues that none of the reasons offered by the US for its blocking of the (re)appointment of AB candidates - on grounds unrelated to the personal qualifications of the candidates - can legally justify its disruptions of the WTO legal and dispute settlement system. Also the European Union (EU) has offered no convincing justification of its failure to protect ‘strict observance of international law’ in it external relations, as required by Article 3 of the Lisbon Treaty on European Union (TEU) and by Article IX:1 WTO Agreement (‘where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting’). The 2018 ‘Concept Paper’ prepared by the EU Commission on ‘WTO modernization’ indicates no strategy for the obvious problem that the EU objective of ‘preserving and deepening the rules-based multilateral system’, including ‘more effective and transparent dispute settlement including the Appellate Body’, is inconsistent with the US strategies underlying US blocking of the AB jurisdiction by preventing the appointment of AB judges, a strategy which was previously applied by the US for blocking third-party adjudication under Chapter 20 of the North American Free Trade Agreement (NAFTA). Trade diplomats have no democratic mandate for disrupting the AB jurisdiction by illegally reducing the number of AB members to one single judge by December 2019 and, thereby, undermining the WTO legal and dispute settlement system. EU trade diplomats must exercise leadership for using the existing legal powers and duties of the WTO Ministerial Conference and General Council under Article IX:1 WTO – if necessary, based on ‘a majority of the votes cast’ - to initiate and complete the WTO selection procedures for filling AB vacancies and protect the AB as legally defined in Article 17 DSU. Article IX.2 could be used for authoritative interpretations ‘taken by a three-fourths majority of the Members’ confirming the collective duties of WTO members to fill AB vacancies in case of illegal blocking of AB nominations. WTO law foresees similar majority decisions for the appointment of the WTO Director-General; such majority decisions are necessary for preventing illegal de facto amendments of the WTO legal system, and do not set a precedent for future WTO majority voting on discretionary, political issues, which most WTO diplomats reject as a ‘nuclear option’. As suggested by European ordo-liberalism, citizens and democratic institutions must hold trade politicians democratically and legally more accountable for complying with their legislative mandates to implement and modernize, but not to destroy WTO law and dispute settlement.

The first request for consultations under the dispute settlement mechanism of the World Trade Organization (WTO) was filed ten days after its establishment in 1995. Thus far, more than 423 cases have been initiated under this mechanism. In addition, since 1997, Members have been engaged in a review of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), identifying areas in which the system has problems or may be improved. However, there have been difficulties in agreeing on the nature and the extent of these reforms. In the meantime, panels and the Appellate Body have resolved many of the issues under discussion in the DSU review on an ad hoc basis. There is an element of pragmatism on this approach. However, sometimes the solutions vary from case to case, adding an element of uncertainty to the handling of procedural matters in the WTO dispute settlement mechanism. Certainly, the DSU review process is an opportunity to provide consistency on these issues and is key for the enhancement of the WTO system in general. Currently, it is at risk of being left behind if the Doha Round does not move forward. This paper identifies the areas in which the dispute settlement system is being reviewed. It also identifies other areas in which no proposals have been put forward in spite of the existence of non-codified practice on those issues. Finally, the paper also identifies areas where, if not clarified or improved, would render, in the view of the authors, the DSU review negotiations meaningless.

The paper examines the relationship between the World Trade Organization (WTO) and Framework Convention on Tobacco Control (FCTC) dispute settlement mechanisms. It concludes that since two regimes relate to distinctive legal obligations, one cannot describe the relationship between their dispute settlement mechanisms in terms of conflict of jurisdiction Even if one assumes that such conflict exists a mere existence of an alternative dispute settlement system (i.e. the FCTC) does not preclude a WTO panel from examining a case with respect to possible violation WTO law. The paper also notes that while the FCTC Parties may introduce in the future a new clause in the Convention that will prioritize, over other available alternative mechanisms, its dispute settlement system, this will not affect the jurisdiction of WTO panels (or make a particular case inadmissible). The Appellate Body in its recent report (Peru – Additional Duty on Imports of Certain Agricultural Products), while agreeing that WTO Members can waive their right in the extraneous agreement to have a recourse to the WTO dispute settlement system, also set very strict standards. In particular, such a decision needs to be clearly formulated and can be made only with respect to the settlement of a specific dispute rather than as a general clause. In addition, this cannot lead to the violation of applicable WTO provisions, meaning that a WTO panel will need to examine the contested measure as to its substance anyway. This obviously limits the relevance, under WTO law, of any exclusion clause that may be introduced by the FCTC Parties in the future.

We discuss the role of the dispute settlement mechanism (DSM) of the World Trade Organization (WTO) in the context of a complex characterization of globalization. The dispute settlement mechanism (DSM) of the World Trade Organization (WTO) is at present a controversial exercise at the international level. Reasonable people disagree as to whether it has enhanced and maintained equality between developing and developed countries. Through examining its concrete provisions, procedures and several important factors such as resource availability and political influence outside the WTO, it can be concluded that there are conditions under which the new rule-based DSM can indeed contribute to promoting developing countries' status in the system. Consequently, the rule-based DSM can provide them with more power to defend their own interests. However, the DSM still does not eliminate the power-based relationships between countries. Developing countries are still affected by biases, which stem from several sources such as high financial and legal resource costs, political pressure generated outside the WTO, declarative WTO legal provisions, etc... A reformed WTO with less asymmetry of power will result in a higher level of global social welfare.

Purpose The paper is prompted by the US–China trade war and its implications for the sustenance of the multilateral trading system. The two rivals resorted to “self-help” without recourse to the World Trade Organization (WTO) dispute settlement system, flouting the WTO as an adjudicator in trade disputes. This paper aims to analyze the drawbacks in the settlement system and examines the urgent need for a retroactive remedy. Design/methodology/approach This paper adopts desk-review and jurisprudential analysis of the relevant rulings of the WTO dispute settlement body. Using desk-review, primary sources such as the relevant domestic legislations invoked by the USA and China to trigger the trade war were discussed and critically analyzed. Findings This paper finds that the unilateral and protectionist actions that characterize the trade war can be linked to the loss of confidence in WTO remedies to redress members’ retroactive economic losses. This finding is useful in arguing for the incorporation of a retrospective monetary remedy to forestall the reoccurrence of a similar trade war and save the WTO from being dysfunctional. Originality/value Although, whether there should be retroactive remedies in the settlement system has been long debated, this paper makes a significant contribution by highlighting why the drawbacks in the settlement system have become so prominent in the context of this trade war. This paper strengthens the urgent need for WTO dispute settlement reform to prevent a reoccurrence of another global distortion of trade.