WTO Dispute Settlement Procedures Research Articles

The ACWL’s Mandate to Provide Training on WTO Law: The ACWL’s Annual Training Course

The Advisory Centre on WTO Law (ACWL) has a mandate to provide legal training on WTO law. The ACWL developed its first training course on WTO law in 2002. To date, the ACWL has conducted nineteen training courses. The ACWL structures its annual training courses on a three-year cycle. The first course covers the basic principles of WTO law, the second covers the WTO Agreements relating to trade remedies, trade in services and trade-related intellectual property rights, and the third covers WTO dispute settlement procedures. The training course is taught by ACWL lawyers and begins in October and ends in June the following year. Over the years, 955 delegates have registered their interest in attending the training courses, 159 of whom were from least-developed countries (LDCs.) The ACWL has provided Certificates of Attendance – given to delegates that attend a minimum number of training sessions each year – to 630 delegates, ninety six of whom were from LDCs. Feedback from former participants has been positive indicating that their participation in the ACWL’s training course(s) has assisted themselves and their government to better understand their rights and obligations under WTO law. Training, capacity building, ACWL, basic principles on WTO law, WTO agreements, Moot Court exercise, developing countries, least developed countries, Geneva-based delegates

Systemic Issues in the Panel Report in Indonesia – Chicken (Article 21.5: Brazil)

The Panel Report in the compliance proceedings under Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Dispute (DSU) in the case Indonesia – Measures Concerning the Importation of Chicken Meat and Chicken Products (Indonesia – Chicken (Article 21.5 – Brazil)) provides interesting guidance on systemic issues regarding the compliance phase of the WTO dispute settlement procedures. Scope of Article 21.5 of the DSU, Amended measures, Reasonable Period of Time, RPT, Compliance proceedings, Judicial economy, Import restrictions, Undue delay in approvals, Article XI of the GATT 1994, Article 8, Annex C of the SPS Agreement, Chicken meat and chicken products

Plurilateral Cooperation as an Alternative to Trade Agreements: Innovating One Domain at a Time

AbstractAt the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters addressed by the JSIs. In parallel, WTO members should establish enforceable multilateral principles to ensure OPAs are compatible with an open global trade regime.

Domain-specific Plurilateral Cooperation as an Alternative to Trade Agreements

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review, and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters addressed by the JSIs. In parallel, WTO members should establish enforceable multilateral principles to ensure OPAs are compatible with an open global trade regime.

Preventing the Bad from Getting Worse: The End of the World (Trade Organization) As We Know It?

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A key challenge is that plurilateral cooperation go beyond a focus on good regulatory practices and coordination failures and address sources of major trade spillovers. Doing so will depend on resolving the dispute settlement conflict given the need for new plurilateral agreements to be enforceable.

Stare Decisis in the WTO Dispute Settlement Procedure: A Response to the Trump Administration’s Criticism

The United States’ refusal to reappoint judges to the WTO Appellate Body will potentially render the appellate mechanism functionless at the end of this year. One of the alleged justifications provided by the Trump Administration – the treatment of previous Appellate Body reports as precedent – is the subject of this article. By examining the WTO legal framework as well as relevant case law, the paper demonstrates that the criticism in this regard is unjustified, and instead rather serves to conceal the dissatisfaction with consecutive negative decisions by panels and the Appellate Body, dismantling protectionist US measures.

Stare Decisis in the WTO Dispute Settlement Procedure: A Response to the Trump Administration’s Criticism

The United States’ refusal to reappoint judges to the WTO Appellate Body will potentially render the appellate mechanism functionless at the end of this year. One of the alleged justifications provided by the Trump Administration – the treatment of previous Appellate Body reports as precedent – is the subject of this article. By examining the WTO legal framework as well as relevant case law, the paper demonstrates that the criticism in this regard is unjustified, and instead rather serves to conceal the dissatisfaction with consecutive negative decisions by panels and the Appellate Body, dismantling protectionist US measures.

Security Exceptions in the WTO System ‒ A Discussion of the Russia- Traffic in Transit Case and Its Implications for Korea ‒

The findings of the panel decision of Russia- Transit (DS512) as to the application of GATT XXI can be summarized as follows: Once Article XXI is invoked by Members in the WTO dispute settlement procedure, the panel has jurisdiction to review the dispute by the application of the provision. Members has a sovereign right to determine the “essential security interests” and a subjective right to find necessary protective measures. The panel still maintains power to review the good faith of Members in the interpretation and application of subjective elements of the clause. Three subparagraphs of XXI:(b) set out objective factors the satisfaction of which should be assessed objectively. “other emergency in international relations” requires graveness of the situation comparable to war and generally disqualifies simple trade and economic conflicts. If Chinese retaliatory measures against Korean installation of THAAD system were brought to the WTO dispute settlement procedure, the measures such as ban on travelling to Korea and boycott of Korean products would be held inconsistent with the WTO Agreements and unable to be justified under security exception clauses as they are not related to the protection of essential security interests. The US is expected to lose the WTO cases concerning its measures on steel and aluminum products unless it adjust the target and latitude of its measures. Meanwhile, it is not as simple to predict the result of the case concerning Japanese measures related to the exportation of products and technology to Korea. Unless the situation get worse, settlement of disputes through negotiation is recommended.

Addressing Tensions and Avoiding Disputes: Specific Trade Concerns in the TBT Committee

Most specific trade concerns (STCs), which are raised before the WTO Committee on Technical Barriers to Trade (TBT Committee), disappear from the TBT Committee’s meeting agendas without escalating into formal disputes. At the same time, a relatively small number of TBTrelated disputes have been subject to the WTO dispute settlement (DS) procedures. By examining the practice of raising STCs and the relationship between STCs and disputes, the article emphasizes the role of STCs as a trade tension resolution mechanism. It argues that the STC mechanism is a viable alternative to the currently overburdened WTO DS system. The article also suggests ways to strengthen the STC mechanism of the TBT Committee through dividing TBT Committee meetings into thematic sessions, adopting mediation procedures and reporting on STC resolutions. Further, it underscores the importance of increasing transparency and promoting good regulatory practice in avoiding disputes.

개도국의 WTO법자문센터(ACWL) 활용과 제도적 시사점 연구 : 내국민대우의무 위반 여부를 중심으로

WTO 분쟁해결제도 운영에 있어 개발도상국의 참여가 중요한 문제로 제기되면서 분쟁해결양해(DSU) 제27.2조를 바탕으로 WTO 사무국이 제공하던 개도국에 대한 자문 및 법률지원 서비스가 WTO 외부의 독립기관인 WTO법자문센터(Advisory Centre on WTO Law: ACWL) 설립으로 확대, 발전하였다. 본 논문은 ACWL의 제도적 의의를 조명하고 2001년부터의 분쟁해결 지원 활동을 분석하여 향후 제기될 제도적 문제와 시사점을 논의하였다.BR ACWL 조직과 운영체계에 대한 연구결과, WTO 회원국에 국한되지 않은 광범위한 대상을 지원하되 소득과 무역 비중 등 개도국 상황을 고려하여 차등적인 운영체계를 갖추고 있으며 분쟁해결 지원 관련 높은 전문성과 경험을 축적하고 있다는 점을 알 수 있다. 그러나 선진국의 기부 자금을 바탕으로 운영되고 있어 향후 센터 역할이 확대될 경우를 대비한 근본적인 재정적, 제도적 논의가 필요한 실정이다.BR ACWL의 핵심적인 역할이라고 할 수 있는 WTO 분쟁해결제도 관련 법률지원 서비스는 전반적으로 긍정적인 기여를 하고 있는 것으로 분석된다. 즉, ACWL의 지원 사례가 증가하고 있을 뿐만 아니라 지원을 받는 경우 개도국이 분쟁해결을 위해 절차적 단계를 최대한 활용하는 경향이 높아지는 것을 알 수 있다. 또한 피소국 및 제3국 참여 지원은 개도국의 법률 역량을 장기적으로 제고하는 데 도움이 될 것이다. 그럼에도 불구하고 ACWL 지원이 기술적, 법률적 지원에 집중되어 있어 분쟁해결제도 접근을 근본적으로 확대하기에는 한계가 있는 것으로 평가된다.

National Treatment Under GATT Article III: 2 and Its Applicability in the Context of Korea's FTAs

GATT Article III:2 on national treatment on internal taxation is an integral part of Korea’s FTAs. Therefore, GATT/WTO case law provides useful guidance on proper application of this provision in the FTA context. Article III:2 involves a multi-tiered test of several issues including likeness, discriminatory threshold, and protective application of a tax measure. When the FTA parties enter into a dispute over national treatment, the problem of applicable law may arise. First, FTA panels are not obliged to rely on GATT/WTO jurisprudence. Nevertheless, given the incorporation of GATT Article III into the FTA, it is suggested that FTA panels follow WTO case law to secure consistent and predictable application of the national treatment rule. Second, it is questionable whether WTO panels can examine claims under the GATT-plus provisions on national treatment contained in the FTA. In order to avoid possible jurisprudential difficulties, disputing parties may choose to refer the matter to an FTA panel, instead of launching a WTO dispute settlement procedure. Alternatively, the parties may agree, pursuant to DSU Article 7.3, on non-standard terms of reference of the panel where a GATT-plus provision is explicitly listed. In both scenarios, the GATT-plus provisions, as a lex posterior, should prevail over the corresponding GATT provisions.

China's Trade and Development Policy under the WTO: An Evaluation of Law and Economics Aspect

China’s economic success and trade expansion since the 1980s is one of the most important economic achievements, which lifted more populations out of extreme poverty than any other time and place in history. This achievement has been made possible by trade-led development policies successfully adopted by China. China also joined the WTO in 2001, after fifteen years of negotiations with its trade partners, and is subject to WTO legal disciplines requiring the transparency of its trade-related decisions and procedures. This article examines China’s economic reform, which led to its accession into the WTO, and reviews China’s trade and development policies under the WTO. In addition, this article discusses China’s participation in the WTO Dispute Settlement Procedure. There has been a concern as to whether China will be compliant with the requirements under the Dispute Settlement Understanding (DSU). The article shows that China has become an active participant and has maintained well under the terms of the DSU.

The Coming of Age of International Monetary and Financial Law after the Global Financial Crisis

John Jackson’s legacy as one of the founding fathers of International Trade Law is widely recognized. His formidable mind, work ethic, and sheer brilliance radiated throughout his career. His contribution to theory (whether in the understanding of the different dimension of sovereignty or in debates about WTO dispute settlement procedures) and practice (nationally and internationally) made him a unique scholar, universally respected and revered. What is perhaps less well-known is the passion with which he embraced the challenges faced by the international community—policy makers, lawyers, economists, market practitioners—in the immediate aftermath of the global financial crisis. He was a renaissance man, always ready to move beyond established parameters in order to break new ground. He approached novel themes with the enthusiasm of a child. His desire to contribute to a world ruled by norms and institutions rather than by force or by the ‘law of the jungle’ led him to embrace the evolution of international economic law—this time in the area of international money and finance—with boundless optimism and energy. The birth of WTO was for him the fulfillment of an intellectual dream, which he had designed in part. And it is those dreams of a better World that also led him to link with younger academics, to reach out to other disciplines, to think conventionally and unconventionally in order to solve the complex issues involved in the proper functioning of the international financial system. 1

Regionalism within Multilateralism: WTO Review Mechanisms for RTAs

Given different legal regimes which govern the global and regional trading systems, the WTO as such cannot stop the proliferation of RTAs. Nevertheless, the WTO can oversee them through its political and judicial review procedures. Notably, Article XXIV of the GATT, Article V of the GATS and the Enabling Clause contain certain procedural requirements for notification and multilateral review of RTAs concluded by WTO members (political track). In addition, RTAs may be challenged in WTO dispute settlement procedures (judicial track). This paper examines legal provisions and practice of the WTO review mechanisms, explores possible remedies for WTO-inconsistent RTAs, analyzes the transparency mechanism for RTAs, and in particular specific issues of linkage with the WTO judicial review procedures and the possibility of extending the scope of the transparency mechanism to the post-formation period of notified RTAs.

Improving WTO dispute settlement procedures : issues & lessons from the practice of other international courts and tribunals, by Freidl Weiss, London : Cameron May, 2000

Improving WTO dispute settlement procedures : issues & lessons from the practice of other international courts and tribunals, by Freidl Weiss, London : Cameron May, 2000

Improving WTO dispute settlement procedures : issues & lessons from the practice of other international courts and tribunals, by Freidl Weiss, London : Cameron May, 2000

Improving WTO dispute settlement procedures : issues & lessons from the practice of other international courts and tribunals, by Freidl Weiss, London : Cameron May, 2000

The Politics of WTO Enforcement Mechanism

This paper attempts to develop a formal economic framework to analyze the influences of domestic political considerations by democratic governments in shaping the WTO enforcement outcomes following a violation ruling against the defendant. Since a different mix of import and export sectors in the defendant and complainant country will benefit from the various potential enforcement outcomes, they become competing forces which steer the strategic interactions between the disputing governments. The results of the paper illustrate the complainant's strategy in selecting the retaliation list, and the likelihood of the defendant's compliance or compensation in response to the proposed or foreseeable retaliation, given the political and economic environments on both sides of the disputing parties. This paper also captures the possibility of enforcement failures under the current WTO dispute settlement procedure, where the complainant does not have enough retaliation capacity to induce compliance or some form of compensation from the defendant.

The Challenge of Ongoing Conduct in WTO Dispute Settlement Procedures

The Challenge of Ongoing Conduct in WTO Dispute Settlement Procedures

Administration of Justice in the World Trade Organization: Did the WTO Appellate Body Commit 'Grave Injustice'?

AbstractJudicial administration of justice through reasoned interpretation, application and clarification of legal principles and rules is among the oldest paradigms of 'constitutional justice'. The principles of procedural justice underlying WTO dispute settlement procedures, like the conformity of WTO dispute settlement rulings with principles of 'substantive justice', remain controversial. This contribution criticizes the recent, harsh condemnation of the WTO dispute settlement rulings in the Brazil Tyres case as 'committing grave injustice'. After recalling the customary law requirement of interpreting treaties and settling international disputes 'in conformity with principles of justice' and human rights, the contribution examines the WTO Appellate Body case-law from the perspective of diverse conceptions of 'conservative' and 'reformative justice', 'general' and 'particular justice', procedural and substantive justice, national and multilevel 'constitutional justice', and judicial protection of transnational rule-of-law for the benefit of citizens. The article concludes that the panel, appellate and arbitration reports in the Brazil Tyres dispute, like many other WTO Appellate Body reports, reflect a growing concern 'to administer justice' in WTO dispute settlement proceedings. WTO judges and investor-state arbitrators should follow the example of the ICJ and of European courts and clarify the 'principles of justice' justifying their settlement of international economic disputes so that 'justice is not only done, but also seen to be done', albeit subject to 'trial and error'. Legal practitioners should support – and, as part of the 'invisible college of international lawyers', hold accountable – the emergence of an 'international judiciary' as an 'epistemic community' committed to defending rule of law, peaceful settlement of disputes and 'principles of justice' in mutually beneficial economic cooperation among citizens across national frontiers.

National Treatment under GATT Article III: 2 and its Applicability in the Context of Korea’s FTAs

GATT Article III: 2 on national treatment on internal taxation is an integral part of Korea's FTAs. Therefore, GATT/WTO case law provides useful guidance on proper application of this provision in the FTA context. Article III:2 involves a multi-tiered test of several issues including likeness, discriminatory threshold, and protective application of a tax measure. When the FTA parties enter into a dispute over national treatment, the problem of applicable law may arise. First, FTA panels are not obliged to rely on GATT/WTO jurisprudence. Nevertheless, given the incorporation of GATT Article III into the FTA, it is suggested that FTA panels follow WTO case law to secure consistent and predictable applGATT Article III: 2 on national treatment on internal taxation is an integral part of Korea's FTAs. Therefore, GATT/WTO case law provides useful guidance on proper application of this provision in the FTA context. Article III:2 involves a multi-tiered test of several issues including likeness, discriminatory threshold, and protective application of a tax measure. When the FTA parties enter into a dispute over national treatment, the problem of applicable law may arise. First, FTA panels are not obliged to rely on GATT/WTO jurisprudence. Nevertheless, given the incorporation of GATT Article III into the FTA, it is suggested that FTA panels follow WTO case law to secure consistent and predictable application of the national treatment rule. Second, it is questionable whether WTO panels can examine claims under the GATT-plus provisions on national treatment contained in the FTA. In order to avoid possible jurisprudential difficulties, disputing parties may choose to refer the matter to an FTA panel, instead of launching a WTO dispute settlement procedure. Alternatively, the parties may agree, pursuant to DSU Article 7.3, on non-standard terms of reference of the panel where a GATT-plus provision is explicitly listed. In both scenarios, the GATT-plus provisions, as a lex posterior, should prevail over the corresponding GATT provisions.