World Trade Organization Dispute Settlement Research Articles

Challenges Faced by Vietnam and Other Developing Countries in Participating in the WTO Dispute Settlement System (DSS)

The World Trade Organization (WTO) is currently experiencing a crisis in its dispute system, driven by an increasing number of disputes, escalating complexity of case law, and the ongoing blockade by the United States of Appellate Body appointments since 2016. This blockade has resulted in significant delays in the WTO’s litigation process, disproportionately affecting developing countries - majority members of the WTO - due to the substantial financial costs associated with pursuing litigation. This study aims to analyze the challenges faced by Vietnam and other developing nations in navigating the WTO dispute system. Employing a qualitative methodology, this research will draw on primary sources including legal documents, official WTO reports, and governmental statements. The findings are expected to highlight the limitations of current WTO regulations, the inadequate support from the Advisory Centre on WTO Law (ACWL), and the financial obstacles that deter developing countries from participating actively in the Dispute Settlement System.

From Confrontation To Coexistence: An Appeal Opt-Out Arrangement As An Inclusive Approach To Revive The WTO Dispute Settlement System?

Resolving the crisis in the dispute settlement system is a priority issue for the reform of the World Trade Organization (WTO), and Members have made sustained efforts in this regard. Since the Twelfth Ministerial Conference (MC12), discussions on the dispute settlement system have entered a new phase, focusing on facilitator-organized meetings and proposals from Members. The reform negotiations have made some progress, but still face a number of significant challenges, in particular with regard to the appellate procedures. It is highly uncertain whether a comprehensive solution can be reached by 2024 as mandated by the MC12. Taking into account the different positions of Members and the imminent approach of the Thirteenth Ministerial Conference (MC13), this paper recommends that Members show more pragmatism and flexibility, puts forward a compromise proposal to establish a multilateral arrangement that would allow Members to opt out of the appellate review process under the Understanding on Rules and Procedures Governing the Settlement of Disputes ( DSU), and argues that this could be conducive to restoring a fully and well-functioning dispute settlement system. WTO, Appellate Body Crisis, Dispute Settlement Reform, Opt-out Arrangement

Implikasi Putusan World Trade Organization terhadap Larangan Ekspor Nikel Indonesia oleh Uni Eropa

Indonesia as a member of the World Trade Organization (WTO) is bound by the General Agreement on Tariffs and Trade (GATT) and WTO regulations. In an effort to increase domestic raw material processing, Indonesia implemented an export ban on nickel ore and other minerals. However, this action sparked protests from the European Union, leading to a lawsuit filed with the WTO. This article analyzes the WTO decision in the context of international trade principles, examining its legal applicability in Indonesia and its impact on other types of minerals. The research method used is a normative legal approach or doctrinal research. The final decision of the WTO dispute settlement panel declared that Indonesia's policy of export bans and mandatory processing of nickel minerals violated Article XI.1 of the GATT 1994. Nevertheless, Indonesia appealed the decision and remains committed to the nickel ore export ban to advance the economy and welfare of its people. Thus, this policy represents a bold step towards downstream the mining industry.

WTO International Trade Dispute Settlement System and Benefits for Indonesia

International trade is one of the essential pillars of the global economy. International trade can improve people's welfare through increased productivity, diversified production, and lower prices of goods and services. In international trade, it is not uncommon for disputes to occur between business actors from different countries. This study examines the international trade dispute settlement system in the World Trade Organization (WTO) and its benefits for Indonesia. This research uses normative legal research methods. The data collection technique used in this research is a literature study. The data analysis technique used in this research is qualitative analysis. The results show that the dispute settlement mechanism through the WTO is part of the WTO adjudication function as a world trade organization. The stages of dispute settlement involve consultations, panel formation, panel procedures, and ratification of panel reports, judicial review, and implementation. For Indonesia, participation in the WTO dispute settlement system brings several benefits, such as increasing legal certainty in international trade, protecting Indonesia's trade interests, and increasing the competitiveness of Indonesian products in the international market.

A Proposal to Address Problem of Non-Compliance With The World Trade Organization Dispute Settlement Body Rulings

Objective: This study aims to analyze the problems of non-compliance with several of the rulings of the Dispute Settlement Body of the World Trade Organization and how to overcome the problem to increase the effectiveness of the WTO Law. Methods: This research is normative legal research. The study uses secondary data consisting of primary and secondary legal materials. The data were analyzed by using qualitative method, and conclusions are drawn by deductive method. Result: Some of the WTO DSB rulings have status the compliance proceedings is completed with findings of non-compliance. It meant that some of the WTO DSB rulings were not implemented. This could result in decreased the compliance with the WTO Law and further to hamper the achievement of the WTO objectives. Conclusion: The weakness of the enforcement measures led to non-compliance with some of the DSB WTO rulings. This paper proposes to strengthen the enforcement mechanism to overcome the problem of non-compliance with the WTO DSB rulings through the application of monetary compensation sanctions, temporary prohibition to make complaints and the establishment of WTO DSB rulings enforcement body. An effective WTO law enforcement mechanism was needed to increase international trade and World economic growth, so it was important in achieving the development program goals, including the Sustainable Development Goals.

Research on the Retaliation System in the WTO's Dispute Settlement Mechanism

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.

What will China do under the New Background of WTO Dispute Mechanism?

In the process of establishing a multilateral rule system, WTO (World Trade Organization) has always been an irreplaceable role, which can promote global economic development and provide a platform for resolving disputes. Nowadays, global economic and trade governance is multi-polar, and traditional governance rules are not enough to maintain the world economic order. There is an international recognition that the WTO is anachronistic and in need of reform. China, one of the world 's largest trading countries, for the sake of acclimatizing itself to the new changes in the global economic environment and respond to challenges as soon as possible, China must firmly safeguard the authority and effectiveness of the multilateral trading regime with the WTO as the core, and propel the recovery of the WTO dispute settlement mechanism actively. This paper mainly studies that the current WTO dispute settlement mechanism cannot play an effective role and therefore needs to be reformed. It also analyzes the crises and challenges that China faces in the new era, and gives suggestions for the crises and challenges. Finally, it calls for the current approach to dispute resolution to be through cooperation rather than conflict.

The WTO and Using Digital Economy Technologies: Surviving the Race With Preferential Trade Agreements

This article examines the potential of Artificial Intelligence (AI) and blockchain technologies to help resolve trade disputes, facilitate multilateral trade and increase efficiency within the World Trade Organization (WTO). It looks at how AI and blockchain can be used to automate more complex trade processes, such as anti-dumping measures. The article also outlines the challenges associated with implementing such technologies, such as the need for developing countries to invest in infrastructure, the need to ensure correct data is available, and the potential for future regulatory challenges. Finally, it identifies the key measures that must be taken before AI and blockchain can become part of the WTO dispute settlement and trade facilitation system. WTO, Digital Economy, Artificial Intelligence, Trade Facilitation, Dumping, Dispute Settlement

MULTIPARTY INTERIM APPEAL ARBITRATION (MPIA) AND ITS IMPORTANCE FOR THE REFORM OF THE WORLD TRADE ORGANIZATION

Since 2016, the World Trade Organization (WTO) has 164 members representing over 98% of world trade. One of the main achievements of the WTO is considered to be the strengthening of the dispute settlement system, which has effectively countered the intensification of protectionist tendencies in the global economy. However, the paralysis of the Appellate Body has deprived the world trading system of an enforceable dispute settlement mechanism. To address this difficult situation, an alternative mechanism, called the Multi-Party Interim Appeal Arbitration Arrangement (MPIA), has been set up at the initiative of the EU, which, in the face of the paralysis of the central appeals body, provides a binding, two-stage and independent adjudication process. From the analysis carried out in the study, it can be concluded that the MPIA is an important tool for stabilizing the WTO dispute settlement system, and due to its potential to bring about changes in this system, the MPIA can serve as an initiator of reforms in one of the key areas of the organization’s operations. To achieve the objectives of the study, the analytical and descriptive method, as well as the case study method, were mainly used. The considerations were based primarily on source materials and scientific studies, as well as data from WTO resources.

IMPORTANCE OF OPTIMIZING THE REGULATION OF INTERNATIONAL TRADE AT THE GLOBAL LEVEL

This article aims to discuss potential challenges and advantages developing countries might face by seeking to use World Trade Organization (WTO) negotiations in order to promote their economic growth. The authors analyzed one of the implications of the WTO regulatory system in the framework of global trade liberalization, particularly the Doha Round. The analysis outcomes show the importance and effectiveness of WTO policies towards developing countries and help to formulate the position of such countries in WTO policies and reforms. However, we have to admit that this requires the recognition of benefits by all participants, developed and developing countries, unless it could lead to significant economic cost for all. In order to get a greater beneficial impact or/and minimize potential loss, the authors suggest following multilateral rule-making regulations and carefully conducting a preliminary economic analysis of the country before setting an agreement or dialogue, which will point to differentiation between members and could enhance negotiations or/and avoid risk of failure. The study's theoretical and methodological basis are statistics, analysis, marketing, and management working papers of foreign researchers, regulatory documents, periodical press materials, official legal documentation, and publications relating to the specialized subject area of participation in WTO. The findings of this research might add to the knowledge and understanding of the participation of countries in WTO dispute settlement proceedings and the ability of the WTO system to deal with them.

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 right to regulate and the interpretation of the WTO Agreement

ABSTRACT In contrast to international investment tribunals, World Trade Organization (WTO) adjudicators have been reluctant to acknowledge the inherent right to regulate under international law explicitly. Policy-based considerations arising from such a right have not been viewed as a standalone component under interpretive analyses in WTO dispute settlement. Instead, they have been integrated only to the extent they find expression in the treaty. This article explores how, on occasion, WTO adjudicators have departed from this orthodox approach by choosing to proactively interpret the WTO Covered Agreements in a way that presupposes a States’ right to regulate, even where this may seem contrary to, or unsupported by, the treaty text. In these cases, the question has not been whether such a right subsists within substantive WTO disciplines, but rather how such a right can be read into these disciplines in a manner that comports with the ordinary rules of treaty interpretation. While this unorthodox approach has resulted in interpretations that appear unclear and uncertain, these outcomes are ultimately explicable in terms of a general principle of regulatory autonomy that can form the basis for more principled interpretive choices.

Reformation of Dispute Settlement Mechanisms for International Trade Organizations: Ensuring Developing Country Interests

Regional Trade Agreements (RTAs) are frequently advantageous for developing countries and can help them prepare for future trade opportunities provided by the World Trade Organization (WTO). Developing countries face a dilemma when disputes occur within an RTA; the WTO Dispute Settlement Body (DSB) tends to be too costly and inaccessible, while RTA dispute settlement mechanisms (DSM) tend to be underdeveloped and immature. In order to minimize the cost of dispute resolution and better safeguard the interests of developing nations and regional trade agreements, which are frequently more beneficial to developing countries, this paper describes why and how the WTO should change its dispute settlement procedures. It also argues that these systems should be established to make the WTO's dispute resolution mechanisms more effective.

25 Years of Law and Practice at the WTO: Did the Appellate Body Dig its Own Grave?

ABSTRACT After 25 years of the practice of World Trade Organization (WTO) dispute settlement, the system’s ability to continue performing that function has been significantly hampered as a result of the lack of a consensus among WTO Members to (re)appoint Appellate Body Members, resulting in the Appellate Body being defunct as of December 2019. This brief contribution reflects on the various narratives of the causes of the current state of WTO dispute settlement and comments on the role of the Appellate Body. It concludes that no sole responsibility for the current deadlock can be attributed to the Appellate Body. Undoubtedly, the Appellate Body could have decided differently on certain questions. However, asking whether or how the Appellate Body dug its own grave fails to acknowledge the role of WTO Members, collectively and individually, in preserving binding, compulsory WTO dispute settlement providing for appellate review.

Maintaining Relevance in a Much-Changed World: Reforming WTO Dispute Settlement

ABSTRACT The World Trade Organization (WTO) and its dispute settlement mechanism were established in 1995 to great acclaim. Both have seen much success: WTO membership expanded apace, and the WTO dispute settlement mechanism proved to be the most active state-to-state dispute settlement mechanism in history. However, in recent years, the WTO has come under increasing criticism as negotiations to expand and modernize WTO disciplines have produced limited results and dissatisfaction with the dispute settlement system on the part of the system’s most active user led to the paralysis of appellate review. Calls for WTO reform have become widespread. At the June 2022 Ministerial Conference, WTO members committed to work toward necessary reform, including by conducting discussions with a view to having a fully and well-functioning dispute settlement system in place by 2024. This is a tall order, given that long-standing efforts to agree on amendments to the dispute settlement system not only failed but also highlighted significant differences in members’ preferred approaches for resolving disputes. In addition, the legal processes required to implement the major change could take years. This paper identifies adjustments to the dispute settlement system that could lead to important efficiencies and that can be effected before the 2024 deadline arrives.

Settlement Of Biopiracy Disputes: Is The WTO An Eligible Forum

In 2001, the World Intellectual Property Organization Intergovernmental Committee (WIPO IGC) set out to create an international legislature for the regulation of traditional knowledge and genetic resources (TKaGR). More than two decades later, the legislative process is still inconclusive. One of the most significant indigenous problem this law would have addressed, is the scourge of biopiracy. Biopiracy encompasses a wide range of practices including unauthorized access, uncompensated use and unjust enrichment from TKaGR. Currently, TKaGR custodians have the option of seeking redress at national courts under diverse IP headings and unfair competition as the facts of each biopiracy case dictates. This article will examine the basis for initiating a settlement at the World Trade Organization Dispute Settlement Body (WTO DSB), appropriate case categorization, possible remedies and likelihood of success.

The WTO dispute settlement system as a forum for climate litigation?

AbstractThis article examines whether and to what extent the dispute settlement system (DSS) of the World Trade Organization (WTO) could and should serve as a venue for international climate litigation. The article tackles these questions in three parts. First, it maps the nature and features of a trade‐related climate litigation. Second, it considers the prospect of such litigation under existing substantive and procedural rules of the WTO. Third, it investigates whether the WTO DSS should serve as a venue for climate litigation. The article finds that while the prospect of pro‐climate litigation remains limited, anti‐climate litigation is likely to increase, and that the DSS is an appropriate venue for adjudicating such disputes.

The Recent Crisis of the WTO Appellate Body: Is the WTO’s Reform a Solution?

<p><em>At the end of 2019, the international society was surprised by the cessation of the Dispute Settlement Body of the World Trade Organization (WTO) since the United States (US) blocked the election of the new judge of the Appellate Body (AB). This study examined the superiority and drawbacks of the implementation and capacity of the WTO dispute settlement body (DSB) to maintain the trading system among the state members. This paper finds that the WTO DSB plays a crucial role in the panel report’s acceptance. WTO also continues to develop and is characterized by a strict interpretation of the WTO treaties. Nevertheless, provisions were criticized, which made their implementation inefficient, such as retaliation, the lack of transparency, the restriction of amicus curiae briefs, the procedure of concession suspension, and the deficiency in the enforcement of the report by the injured party. The crisis that happened to the AB could trigger countries to revise the mistakes in the WTO whole system. This situation presents a chance to resolve issues about the output quality and institutional mandate observance of the WTO tribunals. Overall, the ideal option for member states is to continue incurring the costs of loss, develop a consensus, earn global benefits to keep the trading system running and support the WTO through active participation.</em></p>

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

(Re)framing Responsibility? Assessing the Division of Burdens Under the EU Carbon Border Adjustment Mechanism

As part of its highly anticipated Fit for 55 Package, in July 2021 the European Commission introduced a proposed regulation establishing a carbon border adjustment mechanism (CBAM). The CBAM places a price on carbon embedded in imports from certain energy-intensive sectors, and is intended to combat the risk of carbon leakage arising from the gap between EU climate ambitions and those of trading partners. In the words of Commission President von der Leyen, ‘carbon must have its price – because nature cannot pay the price anymore’. This raises the question, however, of who should pay it instead. From the EU’s perspective, the proposed CBAM reflects the EU’s ‘responsibility to continue playing a leading role in global climate action’ through reducing its global GHG footprint in line with the Paris Agreement. However, several newly industrialised countries have attacked the proposal as discriminatory and contrary to the principles of equity and common but differentiated responsibilities and respective capabilities (CBDRRC). Against this backdrop, this article assesses how the EU’s framing of responsibility fits within the applicable public international law framework. First the article examines how the EU’s faming of ‘responsibility’ fits within the law of state jurisdiction, which conditions regulators’ competence to place burdens on actors beyond their territory. It then turns to the division of responsibilities under the UN climate agreements, with a particular focus on opportunities for incorporating a more equitable differentiation of burdens in line with CBDRRC. Such differentiation would only be feasible for regulators if it could pass the obstacles posed by the law of the World Trade Organisation (WTO). Unpacking the challenges and opportunities, it is argued that these hurdles need not be insurmountable, though much would depend on the willingness of both the EU and the WTO dispute settlement body to accommodate competing trade and environmental interests.