WTO Dispute Settlement Mechanism Research Articles

On some aspects of the WTO Jurisprudence and Dispute Settlement Mechanism

The paper first explores certain aspects of dispute resolution mechanism implemented within the World Trade Organization and then proceeds with the legal analysis of a number of legal presumptions, concepts and principles both of procedural and substantive legal nature developed and applicable within the framework of the above mentioned mechanism for resolving disputes between the WTO member-states. The Paper examines the main features that distinguish the dispute resolution mechanism used within the WTO from the GATT mechanism, which mechanism, i/e/ the one implemented within the WTO framework, is recognized to be more legal in nature in contrast to the more political nature of the GATT dispute resolution mechanism, given that under the GATT mechanism the direct negotiations had more weight in reaching the final settlement than within the WTO system, where formal juridical disciplines, as the practice of dispute settlement indicates, play far more role and has become a key element of the system. Also, certain procedural presumptions and principles applicable in the adjudication process as well as the procedure and feature characteristic for the enforcement of decisions are examined in the paper based on and with reference to the number of panel and Appellate Body decisions. Decisions delivered by panels and the Appelate Body represent a very important tool for the interpretation of the WTO law and shapes the practice of its implementation. In this regard, although it is not considered a formal source, Appelate Body and panel decisions should be considered as an important source of both procedural and substantive WTO law. The DSB practice established under the GATT/WTO law, on the one hand, defines a set of applicable procedural rules and on the other hand, develops the WTO substantive law by way of developing the criteria and rules governing the application of provisions of the WTO agreements and other sources governing rights and obligations of the member-states. Particular attention in this regard is paid to the peculiarities of the application of the principle of responsibility for lawful actions applied in the WTO jurisprudence, under the relevant WTO agreements and more specifically under the GATT, GATS, TRIPS and SCM Agreements. Also a number of procedural concepts the principles e.g. the “prima facie case”, “rational relationship” elaborated in the “Hormone” case, principle of multi-criteria assessment initially applied in «Korea - fresh, chilled and frozen meat» case and negative presumption rule applied by the panels are analysied.

An In-depth Analysis of the Evolution of the WTO Dispute Settlement Mechanism: Trends, Challenges, and Prospects

An In-depth Analysis of the Evolution of the WTO Dispute Settlement Mechanism: Trends, Challenges, and Prospects

MPIA as Solution of Appellate Body Dilemma: An Overview of the Advantages of New Mechanism of WTO Dispute Settlement

In December 2019, the WTO Appellate Body, the heart of global trade governance, encountered an unprecedented impasse due to the United States blockade on the appointment of its members. This paper delves into the emergence of the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) as a provisional solution to this deadlock. Established by the European Union and trade partners, and now endorsed by 53 WTO members, the MPIA aims to temporarily fill the void left by the paralyzed Appellate Body by utilizing Article 25 of the DSU. Through a juridical normative methodology complemented by historical and descriptive analysis, this study critically evaluates the MPIA's role within the context of international trade dispute resolution. It compares the MPIA's innovative mechanism against the traditional WTO dispute settlement mechanisms, illuminating both its merits and limitations. The paper argues that while the MPIA represents a creative and necessary stopgap, beyond this, it is not a solution for the challenges facing the WTO's dispute settlement mechanism. The findings emphasize the crucial element for comprehensive reform within the WTO's Dispute Settlement Mechanism (DSM) to regain its functionality and credibility in international trade dispute settlement.

Steel, security and the WTO Dispute Settlement Mechanism: A trade catastrophe in the making

AbstractThe World Trade Organization's (WTO's) Dispute Settlement Mechanism has been rendered ineffective by the refusal of the United States to allow appointments to its Appellate Body. The implicit reason for this poor state of affairs is the desire of the United States to protect its steel sector under the WTO's national security exception. The arguments made by the United States in this regard are mostly spurious and reflect its status as a current bad faith actor within the WTO. The posture of the United States is undermining both the effectiveness and legitimacy of this important trade institution. This article examines both the events leading up to this situation, the commercial interests behind them, and their legitimacy under WTO law.

Neutrality Principles of WTO Dispute Settlement Mechanism: Legal and Moral Dimensions

This paper examines the neutrality principle of the WTO dispute settlement system, which functions as a quasi-judicial body in the settlement of international trade disputes. Given the system's resemblance to traditional courts, its effectiveness in ensuring justice hinges on its adherence to neutrality, ensuring fairness, impartiality, and the rule of law. Recent developments, such as the United States obstruction of the Appellate Body, underscore the tension between maintaining neutrality and addressing external pressures that may compromise this foundational principle. This study analyzes the complexities of the neutrality dynamic in the WTO dispute settlement mechanism and argues for the organization's imperative to protect neutrality amidst emerging challenges. the method used in this study is juridical normative with historical-descriptive characteristics. The research method used is qualitative. The findings of this paper will highlight the need to protect the neutrality principle of the WTO dispute settlement mechanism and the need for change or clarification of the confusion that this blending of economic or political power in DSM, and not beyond that the neutrality of WTO is the heart of this research.

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

On the Reform of WTO Dispute Settlement Mechanism and Suggestions

WTO dispute settlement is a very important mechanism for settling international trade disputes, which plays an important role in promoting the stable development of international trade and creating a fair and just international trade environment. However, with the change of political and economic situations, dispute settlement mechanism has appeared more and more malpractice, including the lengthy and inefficient procedures, the unreasonable regulation of implementation and so on. The dispute settlement mechanism is now facing a crisis as a result of the closure of the Appellate Body. Expediting the process of reforming the dispute settlement mechanism is necessary so as to make sure that the dispute settlement mechanism remains effective in facilitating international trade. Although countries have made some suggestions, it has not reached agreement on the specific scheme of the reform. This article focuses on the issue of dispute settlement mechanism analysis and puts forward reform proposals so as to promote the further improvement of the dispute settlement mechanism.

<span>DSU Expeditious Arbitration within the WTO Dispute Settlement Mechanism</span>

<span>DSU Expeditious Arbitration within the WTO Dispute Settlement Mechanism</span>

Using res judicata to resolve jurisdictional conflicts between WTO and regional trade agreements’ dispute settlement mechanisms

The WTO has a renowned dispute settlement body, distinguished from other dispute settlement bodies by its compulsory and exclusive jurisdiction. However, regional trade agreements provide for rights and obligations similar to those guaranteed by the WTO thus, causing material jurisdictional overlaps between the WTO institutions and regional dispute resolution institutions. Potentially, a State aggrieved by measures that contravene rights or obligations within such overlaps has two alternative fora for dispute resolution. Where the regional trade agreement dispute resolution mechanism resolves the dispute first, the compulsory and exclusive nature of the WTO jurisdiction allows the matter to be re-determined at the WTO level, causing jurisdictional conflicts and duplicative proceedings. Although it is an established principle in customary international law, res judicata is not provided in any of the instruments guiding the jurisdiction of the WTO dispute settlement system. The jurisprudence of WTO Panels and the Appellate Body are also thin on this matter. Seemingly, the inclination has been to exercise the compulsory and exclusive jurisdiction, without regard to other existing fora. This paper therefore suggests clear recommendations to be employed in widening the existing WTO jurisprudence on res judicata as a solution to jurisdictional conflicts. In doing so, this paper further acknowledges the possible criticisms against res judicata in WTO dispute settlement and provides possible solutions to these challenges to ensure the peaceful and harmonious coexistence of the WTO dispute settlement mechanisms vis-à-vis those of regional trade agreements. Using the South American region as an example, this paper enunciates the jurisdictional overlaps and proposes the application of res judicata by the WTO dispute settlement mechanisms in judicial restraint

Chip War: Rethinking on the WTO Dispute Settlement Mechanism

Chip War: Rethinking on the WTO Dispute Settlement Mechanism

The Research and Reform on the Defects of WTO Panel Procedure

The WTO panel procedure is integral to the WTO dispute settlement mechanism. While playing its unique role, the panel procedure of WTO also faces many challenges and needs to be reformed to adapt to the development of economic society. To consolidate its legitimacy and improve the authority of the panel procedure in the dispute settlement mechanism, active adjustments, and reforms should be made in the selection of panel members and the transparency of the panel procedure. And we need to properly handle the relationship between the panel procedure and Appellate body, which is embodied in the fact that we can set up a standing panel to solve various contradictions in reality. Through reform, the WTO panel procedure can play its unique role in a more scientific and sustainable state, maintain fairness and promote cooperation to a large extent.

Unleashing the WTO Appellate Body: Strategies for Resolving the Deadlock

The suspension of the Appellate Body has plunged the WTO dispute settlement mechanism into a crisis, and the time and cost for countries to participate in dispute settlement have in-creased significantly. This paper aims at finding ways to mitigate shocks from the shutdown of Appellate Body. This paper analyzes the reasons for the suspension of the Appellate Body from the attitude of developed countries led by the United States. Then it analyzes the challenges faced by developing countries and Least Developed Countries (LDCs) due to the U.S. concerns about the status of developing countries. Lastly, the WTO Secretariat is compared with the IACHR Secretariat to find out the special status of the WTO Secretariat and its problems. Finally, this paper suggests that the voting mechanism should be used to facilitate the selection of Appellate Body members and clarify WTO agreements. In addi-tion, the accountability of the Secretariat should be strengthened. Finally, the WTO should give more support to developing countries and LDCs such as establishing a fund to help them participate more effectively in dispute settlement.

China-US Trade War and the Dispute Settlement Mechanism of the WTO

This paper studies the hegemonism of the WTO dispute settlement mechanism and the severe damage to the free trade system exposed by the Sino-US trade war. The agency faces several problems. First, the WTO currently covers a wide range of areas, which makes it challenging to coordinate the interests of member states. Second, the WTO has adopted a decision-making mechanism by consensus. As long as no member objects, corresponding decisions can be adopted. From the historical development process of the decision-making mechanism, it is the first time that the consensus decision-making mechanism considers all members opinions in the decision-making process and tries to make overall considerations. Still, the consensus decision-making mechanism does not stipulate voting or specific decision-making rules. In addition, the paper proposes several potential solutions to modify the dispute settlement mechanism.

Article XX of the Gatt 1994 and WTO Members: Sufficient Freedom to Define And Pursue Environmental Policy Objectives

Abstract Providing free trade conditions to all WTO Members, the GATT 1994 includes general exceptions to Article XX, which allows members to adopt trade and legislative restrictions and measures to promote values and interests and the protection of the environment. Driven by the aim of protecting the environment, various countries have been adopting a considerable number of measures to protect the environment and all human, animal and plant life and health under their jurisdiction. However, such restrictions are likely to influence the free trade regime through a clash of interests and relationships between WTO Members, which are challenged through WTO dispute settlement mechanisms. Although the WTO provides exceptions under Article XX of its free trade conditions to protect the environment via the national environmental measures of WTO Members, the justifications for such measures are challenged in meeting the requirements of Article XX.

The Construction of International Trade Dispute Settlement Mechanism in the Context of RCEP and China's Positioning

With the regional economic integration and economic globalization, RCEP was enacted and entered into force, and its dispute settlement mechanism provides a more efficient and convenient way and platform for FTA members to resolve trade frictions against the background of WTO dispute settlement mechanism's difficulties. The paper adopts the research methods of textual analysis and comparative analysis and concludes that the RCEP dispute settlement mechanism adopts a hybrid model with more comprehensive provisions in terms of basic settings and procedural construction; compared with the WTO dispute settlement mechanism, RCEP has obvious advantages in terms of autonomy, timeliness and fairness. Meanwhile, the paper proposes that China, as an important member of RCEP, should further strengthen Asia-Pacific region's economic and trade corporation in the process of building an open, free and rule-based multilateral trading system to help the construction of "One Belt, One Road" and enhance China's influence and discourse power as a practitioner.

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.

Sino U.S. Trade War: Settling the US-China Trade War from the Perspective of International Organization and Regulation

In this intensifying Sino U.S. trade war, only a sound multilateral trading system can promote the economic development of countries in the context of globalization. In addition to avoiding deeper and broader political confrontation, China and the U.S., which will inevitably have various frictions and disputes in the future, should use international law and international rules to deal with complex international trade disputes. Beyond that, recourse to the WTO dispute settlement mechanism is a key step in resolving the Sino U.S. trade dispute, which requires that we first get the Appellate Body back up and running. Given the lengthy nature of the reform, changes to the consensus rule around the U.S. first should be an alternate solution to reinstate the Appellate Body in the short term.

HOW DOES THE WTO DISPUTE SETTLEMENT MECHANISM WORK FOR WTO MEMBERS? A COMPARATIVE ANALYSIS OF DEVELOPED AND DEVELOPING COUNTRIES

The WTO dispute settlement mechanism (DSM) is now facing a crisis of paralysis. Given such a challenging environment, this study examines factors affecting the participation of the WTO DSM by using bilateral data of WTO members from 1995 to 2017. Moreover, we provide a comparative analysis of the factors affecting the filing of cases at the WTO DSM between developed and developing countries across this period. By conducting the rare-event logistic regression method, we find that the export intensity, retaliation capability, economic power and economic threat are the main factors determining the initiation of trade disputes by WTO members. Moreover, the results from seemingly unrelated regressions suggest that economic power, proxied by the complainant country’s gross national income, is not a vital issue of importance that developed countries need to consider when deciding to initiate trade disputes; however, in contrast, developing countries still see it as an important factor affecting the use of DSMs, especially when the target countries are developed countries. Nonetheless, it is worth noting that in the later stage of the WTO, the impact of economic power no longer has any differential influence. On balance, these results reflect the efforts of the WTO to build a fair and rule-based DSM while also highlighting the urgent practical significance of maintaining a solid and effective mechanism for handling international trade disputes.

The Expectation of the WTO Dispute Settlement Mechanism after the "Paralysis"

WTO dispute settlement mechanism since its birth has been known for its efficiency and fairness and is an important force to maintain the multilateral trading system, the appellate body is more known as the "Supreme Court" in the dispute settlement mechanism, but as the American impact of the appellate body and eventually lead to the lockout, the problem of the appellate agency also exposed. While the shutdown of the appellate body will not directly lead to the collapse of the existing multilateral trading system, the appellate body shutdown will create significant uncertainty for the WTO. How to survive this shutdown and restore the appellate body through the necessary innovation and improvements is not only an important task for WTO members but also the need to curb unilateralism and fight trade protectionism.

The Role of Non-governmental Organisations Acting as Amicus Curiae in WTO

WTO dispute settlement mechanism is a closed system, however, the non-governmental organisations acting as amicus curiae in WTO plays an alternative way in the external aspect. There are different opinions about the intervention of amicus curiae, we should take active measures to face amicus curiae.