World Trade Organization Dispute Resolution Research Articles

International Trade Law: A Driver of Climate Action or a Roadblock?

Abstract Much has been written about changing the world's perception of international trade—from an area of development that will accelerate climate change to a powerful tool that can drive climate action. This article elaborates on four mechanisms of international trade law developed and honed by the World Trade Organization (WTO) that can play a pivotal role in accelerating climate action. The four mechanisms are the WTO's dispute resolution system, the Agreement on Technical Barriers to Trade (TBT), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the regional trade agreements (RTAs) negotiated under the WTO framework. Elucidating the WTO's role, this article supports the proposition that every multilateral institution can rise to the occasion and spearhead climate action in its own unique capacity.

Harmonizing Dispute Resolution Mechanisms: Enhancing Efficiency and Synergy between WTO and ISDS System

This research article explores aligning and optimizing dispute resolution mechanisms in international law, particularly within the World Trade Organization (WTO) and Investor-State Dispute Settlement (ISDS) contexts. Addressing challenges arising from the "spaghetti bowl effect" of multiple treaty regimes, it examines the interplay between WTO and ISDS systems, aiming for harmonization and reduced jurisdictional inconsistencies. Traditional coordination methods are evaluated, revealing limitations in adapting to this evolving paradigm. Instead, an "articulation clause" and the "principle of comity" are proposed as innovative approaches for rationalizing dispute resolution. These strategies aim to transcend rivalry between WTO and ISDS mechanisms, expediting impasse resolution in the WTO Appellate Body. The study promotes a strategic shift, encouraging stakeholders to view dual mechanisms as mutually advantageous. This pragmatic outlook empowers informed decision-making, enhancing the global rule of law's predictability, efficiency, and integrity. The ultimate goal is strengthening the WTO's dispute resolution framework and ISDS mechanism, contributing to a more streamlined and cohesive international dispute resolution landscape. The qualitative research methodology has been applied to the following article.

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.

How Do the Third Parties Contribute to WTO Dispute Resolution?

World Trade Organization (WTO) judicial bodies face dual obstacles because of their limited legal authority: they do not have the power to investigate members, so they depend primarily on submissions from disputants. They have no authority to sanction members directly, so they rely on decentralized enforcement. The legalization of the trade regime depends on consent and voluntary compliance. This article focuses on the role of third parties in the dispute settlement process and investigates how they contribute to the legalization of the WTO. I use an original dataset covering all WTO disputes from 1995 to 2012, containing unusually detailed information about the number of third parties, the total dispute settlement period, and the final stage that disputants use, etc. In contrast to the existing literature, which characterizes third parties as spoilers that prevent early settlement, I find that WTO third parties have heterogeneous motivations for participation; moreover, participation by third parties with differing motivations has different effects on dispute settlement and compliance. In particular, third parties that claim to have ‘systemic interests’–a legal designation that allows them to participate despite their negligible stakes in a dispute–have considerable influence on dispute resolution. Specifically: (1) their briefs provide higher-quality information than other third-party briefs to panels and the Appellate Body; (2) they help to accelerate dispute settlement; and (3) their participation makes respondents more likely to comply with panel and Appellate Body rulings. WTO, third parties, trade disputes, legalization, trade laws, systemic interests, panels, Appellate Body

Blokada Apelacionog tela Svetske trgovinske organizacije i Privremeni žalbeni arbitražni aranžman (MPIA)

The World Trade Organization (WTO) dispute settlement system is organized in two stages. In the first instance, the existing dispute between the members is resolved by ad hoc panels. In case the parties are dissatisfied with the panel's report, the dispute is finally resolved by the second instance body - the Appellate Body (AB). Since 2017, the United States has repeatedly blocked the appointment of members of the Appellate Body, which has caused a progressive reduction in the number of members. As the mandate of two of the three remaining members ended on 10 December 2019, the highest institution in the WTO dispute resolution system has thus become de facto dysfunctional. The blockade of the Appellate Body has resulted in a crisis in the WTO dispute settlement mechanism, which ultimately implies that the disputes are not being definitively resolved. In order to remove the blockade of the Appellate Body and its consequences, some WTO members have established a complaint redress mechanism in accordance with Article 25 of the Agreement on Dispute Resolution Rules and Procedures (DSU). Article 25 of the DSU envisages the possibility of establishing arbitration for resolving disputes at the multilateral level. This provision serves as a basis for establishing an arbitration mechanism that would act as an alternative to the Appellate Body while it is under blockade. On 30 April 2020, after intensive debates on how to implement this idea, the Multi-party Interim Appeal Arrangement (MPIA) came into force. The MPIA arrangement offers a short-term solution to overcome the problem of blocking the Appellate Body, while members try to find a more permanent solution. This article examines the role that the newly established MPIA would play in the future of the WTO, as well as the procedural innovations it has introduced, which can serve as a trigger for systematic changes in resolving disputes in front of the WTO.

THE IMPLICATIONS OF THE WTO TOBACCO PLAIN PACKAGING DISPUTES FOR PUBLIC HEALTH MEASURES

AbstractAustralia became the first country to introduce standardised or plain packaging laws for tobacco products in 2011. However, they immediately came under direct and indirect challenge from the tobacco industry in various domestic and international fora, including at the World Trade Organization (WTO). The WTO-consistency of Australia's measures was not settled until June 2020, when the Appellate Body upheld two WTO panels’ earlier findings that Australia had acted consistently with its obligations under certain WTO agreements. This article critically analyses the Appellate Body's key findings and their implications for implementing other public health measures. It is shown that these implications are multifaceted, have political, practical and legal dimensions and are likely to reach beyond the WTO dispute resolution system's bounds into other international trade and investment law contexts.

The Benefits of Differentiated Transparency. Proposal for Graduated Confidentiality Regimes within International Tax Disputes

To date, legislators and policymakers have not yet used any explicit policy criterion to balance transparency matters when dealing with EU and OECD tax dispute resolution reforms. This article wants to fill this void by providing a unique tool for implementing changes in international tax dispute resolution mechanisms, balancing different expectations and needs of stakeholders. Providing an example of its application, it proposes the use of differentiated levels of transparency according to stakeholders’ interests to ensure efficiency and fairness of outcome. The article employs principles of data protection regulations as a means to propose changes, drawing inspiration from comparable dispute resolution regimes that deal with taxation matters (Investor-State Dispute Settlement, International Commercial Arbitration and World Trade Organization dispute resolution mechanism). It concludes by providing proposals to render more efficient the current EU and OECD tax dispute resolution mechanisms. Transparency, dispute resolution, international arbitration, legitimate interests, reform, WTO, ICSID, commercial arbitration, EU tax, OECD.

To AB or Not to AB? Dispute Settlement in WTO Reform

ABSTRACT Recent debates on the operation of the World Trade Organization’s dispute resolution mechanism have focused primarily on the appellate body. We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of depoliticized conflict resolution that is reflected in the negative consensus rule for the adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to World Trade Organization working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the appellate body crisis. Effective, coherent, and consistent World Trade Organization dispute resolution need not include an appellate body. An appropriately redesigned single-stage process can serve just as well, if not better.

The U.S. Tax Reforms and the WTO

The article aims to appreciate the U.S. tax reforms, especially in topics related to international taxation, emphasizing the analysis of their potential incompatibility with the World Trade Organization (WTO) law. It will be discussed in the U.S. international tax environment before the U.S. tax reforms, and what will be the primary changes that will be introduced by the Tax Cuts & Jobs Act (TCJA). Following a discussion regarding how taxes can be a trade barrier, it was identified that the U.S. tax rules may not comply with the WTO law. This article aims to provide a brief review of the previous U.S. cases in the WTO, related to taxation, with issues similar to the failures raised in terms of the TCJA, and how the WTO dispute resolution has ruled against the US perspective. In the end, the paper concludes with an analysis of what could be done to the tax reforms by trade partners within the WTO, and provide some possible paths to be followed, especially by those who feel hurt by the changes.

Do announcements of WTO dispute resolution cases matter? Evidence from the rare earth elements market

Rare earth elements (REEs) have gained increasing attention recently for several key reasons: 1) they are vital to many strategic industries, 2) they are relatively scarce, 3) they frequently exhibit high price fluctuations, 4) China holds a quasi-monopoly on their mining, and 5) China's REE policy, which was overly restrictive and led to a formal complaint from the U.S., Japan, and the EU at the World Trade Organization (WTO) in 2012. This paper investigates whether the announcement of a WTO dispute resolution case has the power to fundamentally change market dynamics. We find empirical support for this notion because REE prices exhibit a structural break around the announcement of the WTO dispute, and show lower variance ratios for all tested REEs afterward. This indicates a tendency toward efficiency, although REE prices still do not follow a random walk. Similarly, we find that stock price informativeness of companies in the REE industry increases after the announcement, reflecting more firm-specific than marketwide information and less governmental influence. Finally, we show that model uncertainty for option pricing models decreases, which we measure by the lower pricing differences among them.

Do Announcements of WTO Dispute Resolution Cases Matter? Evidence from the Rare Earth Elements Market

Rare earth elements (REEs) have gained increasing attention recently for several key reasons: 1) they are vital to many strategic industries, 2) they are relatively scarce, 3) they frequently exhibit high price fluctuations, 4) China holds a quasi-monopoly on their mining, and 5) China’s REE policy, which was overly restrictive and led to a formal complaint from the U.S., Japan, and the EU at the World Trade Organization (WTO) in 2012. This paper investigates whether the announcement of a WTO dispute resolution case has the power to fundamentally change market dynamics. We find empirical support for this notion because REE prices exhibit a structural break around the announcement of the WTO dispute, and show lower variance ratios for all tested REEs afterward. This indicates a tendency toward efficiency, although REE prices still do not follow a random walk. Similarly, we find that stock price informativeness of companies in the REE industry increases after the announcement, reflecting more firm-specific than marketwide information and less governmental influence. Finally, we show that model uncertainty for option pricing models decreases, which we measure by the lower pricing differences among them.

The WTO Panel's Approach to the Precautionary Principle in the EC Biotech Case: What Implications for the WTO and International Environmental Law?

The debate on Genetically Modified Organisms (GMOs) is of particular interest to developing countries including Uganda. In the purview of the intersection between Trade and Environment at the World Trade Organization (WTO), the debate has manifested in consideration of the question of the applicability of the Precautionary Principle. This paper analyses the WTO panel’s decision in the EC Biotech case. The main intention is to illustrate that the precautionary principle is an important principle in international environmental law, notwithstanding the fact that it is surrounded by a lot of controversy. States apply this principle to protect their citizens and not even WTO litigation can prevent them from doing that. The principle is vital and its application should be strengthened rather than relegated to some redundant, illogical conception of paranoid environmentalists by the WTO and other international dispute resolution mechanisms. Through its analysis of the EC Biotech case, the paper shows that some aspects of the principle do need clarity and some suggestions are made in that regard. But sometimes, like in the WTO cases, the principle is either not well appreciated or easily confused with the principle of prevention. This paper also shows that the WTO has deliberately adopted a mundane approach to discussing the principle’s status and its implications for WTO dispute settlement as well as international environmental law and international law in general. This approach is deplorable and a waste of time. Instead, the WTO and other dispute resolution mechanisms should work towards a convergence on how to refine and apply the principle in tandem with other non-environmental obligations.

Do WTO Rulings Really Matter? Evidence from the Rare Earth Elements Market

Rare earth elements (REEs) have gained increasing attention recently for several key reasons: 1) they are vital to many strategic industries, 2) they are relatively scarce, 3) they frequently exhibit high price fluctuations, 4) China holds a quasi-monopoly on their mining, and 5) China’s REE policy, which was overly restrictive and led to a formal complaint from the U.S., Japan, and the EU at the World Trade Organization (WTO) in 2012. This paper investigates whether the announcement of a WTO dispute resolution case can influence governmental changes in existing policies. We find empirical support for this notion, because REE prices exhibit a structural break around the announcement of a WTO dispute, and show lower variance ratios for all tested REEs afterward. This indicates a tendency toward efficiency, although REE prices still do not follow a random walk. Similarly, we find that the stock price informativeness of companies in the REE industry increases after such an announcement, reflecting more firm-specific than marketwide information and less governmental influence. Finally, we show that the model uncertainty for option pricing models decreases, which we measure by the lower pricing differences among them.

Double Remedies in Double Courts

This article uses an ongoing trade controversy litigated in US courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the article proposes an engagement model as a solution to the double-courts, single-issue problem.

Cross Retaliation under the WTO-DSM

The WTO dispute resolution system provides mechanism for finding out a solution for dispute occurred between the member nations. In respect to the same Dispute Settlement Body (DSB) authorized sanctions to be imposed when a member country is unwilling to comply. However, the retaliation process has some ambiguities and difficulties and also has undesirable economic features. In fact, in the traditional retaliation, trade concessions may cause economic loss to the less powerful member using them. Hence term cross retaliation is invented and the same is used as a weapon against the developed nations to make them comply with the World Trade Organization (WTO) obligations. This chapter discusses in brief the dispute settlement process, traditional retaliation and its drawbacks, the introduction of cross retaliation in the WTO dispute settlement process. The leading cases in which cross retaliation is allowed by the appellate board and use of cross retaliation under the Trade-Related Aspects of Intellectual Property (TRIPS) agreement.

Considerations on the Mercosur Dispute Settlement Mechanism and the Impact of its Decisions in the WTO Dispute Resolution System

This article analyses the evolution of the dispute settlement mechanism (DSM) of the Common Market of the South (Mercosur) from its establishment to the current confi guration, compares it with the mechanisms of the European Union (EU) and the World Trade Organization (WTO) and examines certain Mercosur decisions that are intertwined with WTO rulings, revealing the delicate relation between regional trade agreements (RTAs) and the multilateral trading system.

The asbestos case: a comment on the appointment and use of nonpartisan experts in world trade organization dispute resolution involving health risk.

The World Trade Organization is currently evolving its approach to incorporating scientific and technological evidence into its dispute-resolution process. In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products, the Panel was faced with a large amount of complex and conflicting scientific evidence presented by the partisan experts. The Asbestos Panel's solution was to appoint independent, nonpartisan experts to help it understand and evaluate the scientific evidence. While this was far better than trying to unravel the conflicting scientific evidence on its own, two aspects of the Panel's adopted procedure merit scrutiny. First, the expert-selection process used by the Panel may not assure that the collective expertise of the appointed experts is broad enough when the dispute involves multidisciplinary scientific issues. Second, the process adopted by the Panel for consulting the appointed experts-which involved individual consultation rather than a consensus process-may leave a panel with a distorted or confused picture of the science. A consensus approach is the best means of obtaining scientific advice from appointed experts; it is most calculated to provide a clear and accurate report of the scientific information needed by a panel to make a fair and informed decision on the dispute before it. The underlying principle of world trade agreements is that it is beneficial to all of us to have free trade. Among other things, this requires an effective means of resolving disputes, and increasingly that includes disputes involving complex scientific and technological issues. This can be achieved only if the parties have confidence that their disputes will be decided in a fair and informed manner, based on the best science available. To achieve this goal, we suggest that future WTO panels depart in certain respects from the procedures utilized by the Asbestos Panel.

China and the World Trade Organization: A Legal Perspective. By Kong Qingjiang. [Singapore: World Scientific Publishing, 2002. xiv+350 pp. ISBN 981-238-039-6.

China's accession to the World Trade Organization (WTO) has generated an avalanche of books and articles offering a variety of academic, policy and legal perspectives. Kong Qingjiang's contribution is primarily an explanation of the perspectives of the Chinese government on WTO accession, and focuses on three broad themes: the background to China's WTO accession, dispute resolution, and trade compliance.

The WTO, the Environment and Health and Safety Standards

The World Trade Organization (WTO) is a product of the General Agreement on Tariffs and Trade (GATT). The WTO was created in the last round of negotiations (Uruguay Round, 1986‐94) to provide a stronger set of institutions to administer the various agreements negotiated under the GATT framework. Because the WTO is more powerful than its predecessors, critics claim that it poses a threat to national sovereignty. Concerns about the ability of nations to set their own environmental and health and safety agendas have figured prominently in these critiques. In addition, critics suggest that the WTO prioritises trade objectives at the expense of environmental and health and safety objectives.The article explores the extent to which the WTO has been able to reconcile trade, environmental and health and safety objectives by analysing its rulings on these matters. Overall, this analysis suggests that the WTO dispute resolution process has balanced all three sets of objectives. However, it is important to note the small number of disputes to date; only 21of the 175 disputes before the WTO involve environmental and health and safety matters. Further, the WTO has issued decisions in only six of these cases.

Recent Trends and Perspectives for Non-State Actor Participation in World Trade Organization Disputes

The World Trade Organization (WTO) has sparked global attention for the forces which support and combat international trade. Although membership of the WTO is limited to political entities, non-State actors play a vital role in influencing the development of global trade. Non-State actors such as non-governmental organizations (NGOs) and private corporations closely observe and seek to influence international trade.1 Because of the economic, social, political, and environmental effects of trade, there is a nexus between international trade and the concerns of non-State actors. As a way to remedy trade disputes and challenge national trade policies, the WTO dispute resolution mechanism plays a vital role in the WTO’s objectives. Because of its vital role in the WTO, non-State actors closely observe disputes brought before the WTO dispute resolution mechanism. With this, this article asks: does the WTO dispute resolution mechanism provide non-State actors with the ability to participate in WTO trade disputes?2