Dispute Settlement Understanding Research Articles

The EU’s Anti-coercion Instrument: A Return of Unlawful Unilateral Trade Countermeasures in Disguise?

The European Union (EU) adopted an Anti-Coercion Instrument (ACI) to counter economic coercion and weaponization of economic dependencies. This article analyses the potential application and interaction of the EU’s ACI with the World Trade Organization’s (WTO’s) legal framework. In particular, the article examines the EU’s claim that the ACI is solely governed by general customary law, justifying countermeasures in response to unlawful economic coercion. A closer look reveals the legal complexities and challenges associated with implementing the ACI within the broader context of the WTO. Actions taken under the ACI that seek redress for WTO law violations could potentially be in violation of the WTO’s Dispute Settlement Understanding (DSU). Additionally, justifying a violation of WTO law based on the enforcement of general customary law on countermeasures is unlikely to be accepted. While it is difficult to evaluate the ACI’s application in theory, the article also questions the validity of public morals and national security as justifications for response measures under the ACI. The outcome of potential WTO litigation pertaining to the ACI is difficult to address in the abstract, yet future cases hold the potential to provide further clarity on the interplay between the WTO regime and general international law. Anti-Coercion Instrument, Open Strategic Autonomy, Economic Coercion, Countermeasures, WTO Dispute Settlement Mechanism

Dispute Resolution Mechanism by Dispute Resolution Board According to FIDIC Contract Model and Experience for Vietnam

The article “Dispute resolution mechanism by the Dispute Board according to the FIDIC contract form and experience for Vietnam” researches the theoretical issues related to the FIDIC Contract and the Dispute Settlement Board of the FIDIC. In addition, the article also focuses on researching and analyzing the practice of applying dispute settlement mechanisms by Dispute Settlement Boards in various nations throughout the world. The article's usefulness stems from the knowledge gained while researching this dispute resolution mechanism in countries throughout the world, as well as the present situation of Vietnamese law, which provides solutions and recommendations based on Vietnamese law.

Perlindungan Konsumen Produk Skincare Pada Penjualan Secara Online

Skincare is a skin care product that is popular among the majority of female consumers. One way to obtain skincare products is through online purchases, which, despite its advantages, also has disadvantages such as not meeting expectations (cheap prices but containing harmful substances) and being prone to fraud. The aim of this research is to understand the regulations regarding online buying and selling and consumer protection for skincare products using the online buying and selling system, particularly in terms of negative impacts on consumer health. This research is a doctrinal study that utilizes primary, secondary, and tertiary legal sources. The results of this research are as follows: Firstly, the online buying and selling of skincare products through marketplaces, as stipulated in Articles 1457 and 1458 of the Civil Code, utilize electronic contracts that include the identification of the parties involved, object and specifications, requirements for electronic transactions, pricing and costs, cancellation procedures, rights of aggrieved parties, and dispute resolution. Online buying and selling is recognized as a legitimate and accountable electronic transaction based on Government Regulation Number 71 of 2019 on the Implementation of Electronic Systems and Transactions. Online buying and selling is also regulated by the fatwa of the National Sharia Council of the Indonesian Ulema Council, No. 05/DSN-MUI/IV/2000, which provides provisions regarding payment, goods, parallel salam, goods delivery, cancellation, and disputes. Secondly, consumers of skincare products through online buying and selling are protected by the state both preventively through legislation (Consumer Protection Law No. 8 of 1999, Health Law No. 36 of 2009, Law No. 19 of 2016 on Amendments to Law No. 11 of 2008 on Electronic Information and Transactions, Civil Code, and Criminal Code) and repressively (compensation by businesses; non-litigation through the Consumer Dispute Settlement Board (BPSK); litigation through the courts).Skincare is a skin care product that is popular among the majority of female consumers. One way to obtain skincare products is through online purchases, which, despite its advantages, also has disadvantages such as not meeting expectations (cheap prices but containing harmful substances) and being prone to fraud. The aim of this research is to understand the regulations regarding online buying and selling and consumer protection for skincare products using the online buying and selling system, particularly in terms of negative impacts on consumer health. This research is a doctrinal study that utilizes primary, secondary, and tertiary legal sources. The results of this research are as follows: Firstly, the online buying and selling of skincare products through marketplaces, as stipulated in Articles 1457 and 1458 of the Civil Code, utilize electronic contracts that include the identification of the parties involved, object and specifications, requirements for electronic transactions, pricing and costs, cancellation procedures, rights of aggrieved parties, and dispute resolution. Online buying and selling is recognized as a legitimate and accountable electronic transaction based on Government Regulation Number 71 of 2019 on the Implementation of Electronic Systems and Transactions. Online buying and selling is also regulated by the fatwa of the National Sharia Council of the Indonesian Ulema Council, No. 05/DSN-MUI/IV/2000, which provides provisions regarding payment, goods, parallel salam, goods delivery, cancellation, and disputes. Secondly, consumers of skincare products through online buying and selling are protected by the state both preventively through legislation (Consumer Protection Law No. 8 of 1999, Health Law No. 36 of 2009, Law No. 19 of 2016 on Amendments to Law No. 11 of 2008 on Electronic Information and Transactions, Civil Code, and Criminal Code) and repressively (compensation by businesses; non-litigation through the Consumer Dispute Settlement Board (BPSK); litigation through the courts).

A Discovery or a Misery? The Issuance of Anti-Suit Injunction before WTO

On 27 January 2023, the Dispute Settlement Body established a panel as requested by the European Union in document WT/DS611/5, pursuant to Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. In fact, the European Union has proposed the formation of a panel according to Article 6 of the Dispute Settlement Understanding (DSU) to respond to the Action against China's lawsuit against high technology in the European Union. China imposed a preservation measure, Anti-Suit Injunction (ASI), that prohibit patent holder for asserting their rights before non-Chinese courts. Such movement is inconsistent to international principles, namely National Treatment (NT) and Most-Favored-Nation (MFN). As the EU claimed China on the subject of patent use on high technology, this discussion will further dissect the WTO Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS). Specifically, Article 3 on National Treatment and Article 4 on Most-Favored-Nation Treatment. The issuance of ASI itself is not listed under Appendix 1 of the DSU that regulates laws that are applicable and recognized as WTO norms under a WTO panel. The WTO panel has never adjudicated any cases relating to the issuance of ASI. This questions whether a WTO norm will be formed before the WTO panel and whether or not China has violated the principles of the WTO and the TRIPS Agreement.

Lessons to the DSU from the US-China Trade War and Proposal of Reforms

In the context of globalization, people pay more attention to the role of international economic organizations in managing transnational trade relations. The US-China trade war has critically impacted the global economy and significantly influenced the international trade pattern. The Dispute Settlement Understanding (DSU), an essential section under the World Trade Organization(WTO), failed to function during the US-China trade war. Using the US-China trade war as the entry point to review the US-China trade relations under the WTO, this paper first evaluates the deficiencies of the DSU. Then it raises some reform suggestions in relatively practical aspects. The main intention of reforms is to provide a more concise and complete negotiation platform for solving transnational trade disputes.

Reimagining the Special and Differential Treatment Provisions in the WTO's Dispute Settlement Understanding

AbstractThe 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.

The WTO's Multi-Party Interim Appeal Arbitration Arrangement (MPIA): What's New?

AbstractTo preserve the functioning of WTO dispute settlement following the blockage of the Appellate Body, a sub-set of WTO Members created the Multi-Party Interim Appeal Arbitration Arrangement (MPIA). In the wake of the first appeal award rendered under the MPIA, this contribution describes how the MPIA process works and lists some of the innovations that can be found in the first MPIA procedure. More innovations can be expected as arbitration under Article 25 of the Dispute Settlement Understanding (DSU) (be it ad hoc or under the MPIA) can be adjusted and molded case-by-case by the disputing parties in their appeal arbitration agreements. In this sense, the MPIA can serve not only as an interim stop-gap to preserve WTO dispute settlement. It can also function as a laboratory to explore and test new ways of making WTO dispute settlement more efficient and in line with WTO Members' goals and interests: experimental reform by doing, rather than one-off, formal DSU review.

Suggestions Regarding the WTO Dispute Settlement Mechanism in Strengthening Multilateralism

Amid the outbreak of the US-China trade war from March 22, 2018, to July 6, 2018, the United States government announced trade enforcement actions against China. This was based on an investigation conducted following Section 301 of US Trade Law. Responding to the announcement, the Chinese government retorted with claims of possible countermeasures against the US, citing the Foreign Trade Law of China. At the beginning 74 days of the trade war, the US and China filed three motions for negotiations with the WTO Settlement Body over intellectual property and tariff issues before the US imposed an additional import tariff on China officially. From the start to now, the United States and China have filed eight consultations with the WTO dispute settlement body (DSB). However, no applications have yet provided effective legal support to resolve the trade dispute between these two nations or succeeded to uphold multilateralism. This reflects the weakness of the WTO Settlement Mechanism in upholding multilateralism. With analysis and comparison of the occurrence of the US-China trade war and the eight cases brought by China and the US to the WTO DSB during the trade war easily, two shortcomings of the WTO dispute resolution process in upholding multilateralism and the reasons for them are revealed. Based on this, relevant solutions are proposed.

Jurisdictional Conflict Between the World Trade Organization and Regional Trade Agreements: Res Judicata Revisited

This article discusses the long-standing issue of jurisdictional conflict in World Trade Organisation (WTO) jurisprudence, which has, in the recent decades, been exacerbated by the proliferation of Regional Trade Agreements (RTAs). An examination of WTO jurisprudence reveals that jurisdictional conflict stems from the lack of choice of forum clauses in WTO-covered agreements, and the lack of a hierarchy of sources in international law. While there exists legal basis for the application of general principles of international law such as res judicata, a careful analysis demonstrates that there is conceptual difficulty applying the doctrine in the context of WTO disputes. To remedy this, the article argues that the WTO Dispute Settlement Understanding (DSU) could be amended to allow for the operation of res judicata. WTO, res judicata, jurisdiction conflict, regional trade agreements, general principles of law, Dispute Settlement Understanding

WTO Members Can Save Their ‘Crown Jewel’: A View from the Arab World

On 10 December 2019, the impending impasse at the WTO Appellate Body (AB) cemented itself after the terms of two of the three remaining AB members expired as the US continued to block new nominations. Recent developments, like the proposals for unilateral countermeasures in trade and the COVID-19 pandemic, have sharpened the need to resolve the AB crisis. Interim solutions have indeed come forward such as the Multi-Party Interim Appeal Arbitration Agreement (MPIA) under Article 25 of the Dispute Settlement Understanding (DSU) with additional interim solutions that include the Director General’s (DG’s) good offices, conciliation, and mediation. This article examines some of the existing proposals, including the difficulties in implementing them. It also describes the Arab countries’ participation at the dispute settlement boday so far as well as views and positions on the practical matters on trade-related disputes resolution processes. It is argued that traditional Arab jurisprudence on dispute resolution can make valuable contributions to bypass the current situation whilst the stalemate at the AB is resolved.

The Binding Force of Precedent under the Shadow of the Legal Reasoning of the WTO Dispute Settlement Understanding (DSU) Mechanism

The Binding Force of Precedent under the Shadow of the Legal Reasoning of the WTO Dispute Settlement Understanding (DSU) Mechanism

Turkey–Pharmaceuticals: The First WTO Arbitration for Appellate Review

On 25 July 2022, the World Trade Organization (WTO) issued an arbitration award under Article 25 of the Dispute Settlement Understanding (DSU) on the appeal from the Panel Report in Turkey–Pharmaceuticals. This is the first use of the DSU Article 25 arbitration proceedings for the review of a WTO panel decision. As such, the case is highly significant in that it demonstrates how this alternative dispute settlement method can be successfully utilized to fulfil the function of appellate review after the Appellate Body (AB) became paralysed. Moreover, this innovative use of Article 25 arbitration may suggest a long-term solution in the reform of WTO dispute settlement. With respect to substantive legal issues, this case is also noteworthy, for it dealt with the question of public health and WTO law, a particularly sensitive topic in the post-pandemic era. This essay provides a critical review of the findings of the Panel and the Arbitrators on the substantive issues, while appraising the systemic significance of this first appeal arbitration. WTO Dispute Settlement, DSU Article 25 Arbitration, WTO Reform, Appellate Review, GATT Article XX(b), public health, localization measure

Penerapan Prinsip Keberlanjutan: Strategi Negara Menurunkan Emisi Karbon?

As one of Indonesia's leading commodities, the trend of palm oil exports is always increasing. Even so, this commodity is often subject to global market discrimination which is manifested through regulations and policies of countries consuming palm oil commodities, such as the Renewable Energy Directive II (RED II) and the proposal for Regulation on deforestation-free products. The Indonesian government has filed a lawsuit against this regulation, but the WTO dispute resolution mechanism is still considered unable to resolve the problem, especially the reason that consumer countries think that Indonesian palm oil can reduce its post-2020 emission reduction commitments under the Paris Agreement through Nationally Determined Contributions (NDCs) which needs to be fulfilled in 2030. On the other hand, the Government of Indonesia still needs to improve the governance of Indonesian palm oil in order to increase the acceptance of this commodity in the global eyes. This study aims to find a middle ground for commitments to reduce emissions from consumer countries and improve Indonesian palm oil governance through the acceptability of the palm oil market which is realized through free trade agreements. The formation of a trade agreement by including a clause on sustainability can be one solution to reconcile the acceptance of the palm oil market and global climate change commitments.

Challenges for the Developing Countries and the LDCs in the DSU: Strengthening the Dispute Settlement System of the WTO

The World Trade Organization (WTO)’s Dispute Settlement Understanding (DSU) has obligations to protect the contractual rights of developing countries against the power politics of developed countries. Although the dispute settlement system gives special economic security to developing and the least developed countries (LDCs), there are complains that developed countries have still influence in the DSU due to a lack of balancing political and economic power among members. Many members proposed to strengthen the consultation and mediation processes of the DSU system in the interest of developing countries and the LDCs. The paper examines the constraints and challenges faced by developing member countries against developed countries regarding lodging complaints in the DSU. The paper argues that the DSU should take developing countries’ complaints and proposals to strengthen the dispute resolution processes such as mediation and consultation into consideration for the betterment of the world economy and trade. The paper analyses that trade liberalization and special but differential treatment for developing and least developed countries can balance the power and economic politics among all members of the WTO.

REVIEWING THE STATE OF SUSTAINABLE ENVIRONMENTAL PROTECTION IN THE WTO: SOME SIGNS OF A SLOW BUT PROGRESSIVE PARADIGM SHIFT

There has been a gradual change and paradigm shift in the multilateral trade sphere regarding the links between trade, sustainable development and the environment. Sustainable environment is no longer outside the realm of the WTO. The preamble tothe Agreement Establishing the WTO has been expanded to include a specific commitment to sustainable development. The WTO approach to sustainable development seeks to balance economic development and environmental protection concerns. This approach is notable particularly in GATT Article XX, and in several of GATT’s associated agreements. The decisions of the WTO dispute resolution bodies also had some ramifications for the trade-environment link debate by stating that trade interests do not exist in clinical isolation to non-trade interests such as the environment. Nevertheless, there are several challenges to the trade-environmentinterface, which require reforms to achieve a more coherent and balanced approach to multilateral trade policy, environmental protection and sustainable development.

THE RELATIONSHIP BETWEEN THE DSU ARTICLES 21(5) AND 22 AND THE ISSUE OF THE LITIGATION DEADLOCKS IN THE DISPUTE SETTLEMENT SYSTEM OF THE WORLD TRADE ORGANIZATION

In December 2019, the World Trade Organization (WTO) litigation system was deadlocked. One of the important concerns which arose then was how the blockage of the litigation system could affect Dispute Settlement Understanding (DSU) procedural provisions governing the suspension of concession and other obligations. In the light of this these circumstances, we need to discuss the “sequencing” issues regarding the claimant’s procedural right to seek authorization for suspension in accordance with Article 22 of the DSU and implementation procedure envisaged in Article 21(5). Thus far, the WTO judicial bodies have been inclined to the position that there is no “sequencing condition” for exercising procedural rights provided in Article 22. Contrary to the position of the WTO jurisprudence, academics mostly advocate that the relationship between Articles 21(5) and 22 of the DSU exists through sequencing prerequisite. However, this problem needs to be redefined in the light of the irregular circumstances that may be created by the blockage of the litigation system. Therefore, exclusively in situation where litigation is in blockage, the claimant should be entitled to commence the Article 22 procedure, without prior employment of the implementation procedure in accordance with Article 21(5) of the DSU. In normal circumstances, the claimant must respect a sequencing prerequisite.

WTO DISPUTE SETTLEMENT AND THE CHALLENGES AROUND IT

The main issue considered in the present research work is the challenges that developing countries experience when participating in the Dispute Settlement Body (DSB) of the World Trade Organization (WTO). Developing countries and the least developed countries are faced with limitations of the DSB and, therefore, this research examines the most substantial aspects of these limitations. The current research discusses the financial and legal constraints encountered by developing countries and the least developed countries. This research also explains the need to ameliorate the Dispute Settlement Understanding (DSU). Moreover, the current work scrutinizes the disproportionate use of DSBs for developing countries. It is observed from WTO case law that rulings and proposals based on the DSU not only influence the parties of a dispute but also may impact a considerably broader group of countries. To maintain the progressive, foreseeable and liberal development of world trade, the DSB engages in resolving trade conflicts between the WTO member states. To reach this feasible goal, the integrity and impartiality among members should be increased.

Perlindungan Hukum Terhadap Informasi Iklan Yang Menyesatkan

This study aims to examine the existence of misleading advertising information reviewed from the law perspective as well as the role of the government in providing legal protection to consumers. This study implemented conceptual and legal approaches. The results of the research show that advertisement is stated to be misleading if it violates Article 9 of The Consumer Protection (UUPK). As for the legal consequences, the advertisment’s owners may be subject to administrative, criminal, civil, and additional penalties. Consumers who suffer from misleading advertising information receive preventive legal protection in the form of making legal rules that guarantee legal protection and supervision of customers. In addition, consumers also get repressive legal protection through the courts of the justice so that costumers can file claims to the court or through channels outside the court thant are managed by The Consumer Dispute Settlement Board (BPSK). Based on the research results, its concluded that forms of misleading advertisements are misleading, deceptive, omission, and puffery. Businesses that are dishonest in advertising their products will be subject to sanctions. The advertising legal protection is contained in the UUPK, KUHPer, and the 2020’s Amendment of Indonesian Pariwara Ethics.

Can the WTO appellate Body Apply the Domestic Jurisdictional Rules?

The number of Regional Trade Agreements (RTAs) between countries has significantly increased over the past few decades. RTA may include rights and obligations that are parallel to those of WTO agreement, and provide for its own dispute settlement mechanism that is different from WTO Dispute Settlement Understanding (DSU). This forum clause allows parties to both RTA and WTO to litigate their dispute outside the DSU. This article addresses the issue of jurisdictional conflict between the RTAs and the WTO dispute mechanism over a claim that is violative of both WTO and RTA’s obligations. The main question this article answers is whether it is possible for the forum clause incorporated in RTA to divest the jurisdiction of WTO if invoked during the proceeding. This article analyzes a number of cases and RTAs involving a choice of forum clause before the WTO panel. This paper proceeds to examine different legal principles to find a legal justification to reconcile the jurisdictional scope of both RTA and WTO. As in current international legal principles do not offer an effective solution, this paper suggests that DSU should be amended to provide a set of rules governing the conflict between the RTA and WTO jurisdictions.

Australia-China Dispute Over Barley Trade at the WTO: Challenges Ahead and Possible Outcomes for Australia

In mid-December 2020, Australia sought WTO intervention in its dispute over Chinese anti-dumping duties on its barley export. Upon a critical analysis of the relevant applicable provisions of the WTO Dispute Settlement Understanding (DSU), the potential challenges ahead and likely outcome for Australia, this article argues that the dispute is unlikely to be resolved expeditiously and in favour of Australia due to several caveats and contradictions in the DSU, which seemingly favour China more than Australia. Even if Australia prevails and the outcome of its lamb meat dispute with the US is any guide, the prospect of a procrastinated implementation of the outcome may not be gainsaid. Australia will be the ultimate loser at least in the substantial part, if not the full five-year tenure, of the imposed anti-dumping restriction on its barley imports in China. The article concludes that resort to the WTO by Australia appears to be as difficult as its diplomatic pursuit to resolve this barley trade impasse. Nonetheless, a bilaterally negotiated settlement may be a more palatable option for Australia than any legalistic intervention by the WTO. Highlighting the cracks of the DSU, the article reinforces the urgency of long overdue reforms of the DSU. Australia-China Barley Dispute, Anti-dumping, WTO Dispute Settlement, DSU Reform