WTO DSM Research Articles

CPTPP and WTO DSMs: Scope for Institutional and Procedural Reforms

ABSTRACT The CPTPP aims to achieve deep economic integration through substantive regulations. However, it falls short due to its de-institutionalized inter-state DSM and its dependence on the WTO DSM, which following the AB crisis is currently impaired. The question is whether structural and procedural revisions are needed within the CPTPP and WTO DSMs to effectively resolve current and future disputes. To answer this, the article conducts a comparative analysis of the two DSMs. It emphasizes the importance of aligning the WTO DSM with transformational deep agreements and establishing multilateral pillars for dispute settlement that recognize the ambitions of modern trade agreements.

Guardians of Legality?

Abstract There is an essential conflict at the heart of the international judicial function. On the one hand, interstate courts and tribunals (ict s) are viewed as guardians of international legality; organs of the international community itself. On the other, they are the tools of their creator states. Accordingly, traditional conceptions of the international judicial function frame ict s as dispute settlors pure and simple, a perspective which comes into conflict with a more community-oriented role for ict s. This article explores these different approaches to the international judicial function, presenting them as two opposing perspectives: one bilateralist, one based on the community interest in legality and the international rule of law. It then assesses the practice and procedure of the icj, itlos, and the wto dsm in relation to jurisdiction and admissibility against these differing views of the international judicial function. It concludes that, although the bilateralist perspective still holds considerable sway, a more systemic, community interest-oriented international judicial function is clearly emerging in the field of international adjudication.

ASEAN vs. WTO DSM: Overcoming Jurisdiction Issues to Encourage Regional Trade Agreements’ System Efficacy

Dispute settlement mechanism holds an important role in upholding the rights and obligations of member countries under any agreements signed by ASEAN members as well as to resolve any dispute between Members, therefore, AFTA has its own dispute settlement procedure. Unfortunately, it has not been fully efficient to solve the trade dispute within ASEAN countries because the parties tend to bring their disputes to WTO Dispute Settlement Body (DSB). This is because there are some issues and constraints in the AFTA DSM which vary from technical issues to cultural issues. Specifically, although there has not been any overlap issue with the WTO, the AFTA DSM might have the possibility to create such issue due to the lack of efficieny in the legal framework. It also has another major issues such as difficult access for private parties to defend their rights and the disputes in AFTA are rarely resolved because of the ‘ASEAN Way’ method. The ongoing reliance of ASEAN Member States to WTO DSB is an unfortunate situation knowing the fact that the WTO DSB has been struggling with overlap jurisdiction issues with other RTAs throughout the years. The aims of this writing is proposing possible solutions to encourage the efficacy of RTA’s DSB usage particularly in ASEAN Region.

Can WTO Member States Rely on Citizen Concerns to Prevent Corporations from Importing Goods Made from Child Labour?

There has been a polarised debate on the desirability of import restrictions to increase corporate accountability for child labour that occurs in global supply chains. Some scholars have indicated that states in favour of imposing import restrictions could sidestep this debate relying upon the perceptions that people in the importing market might have. They have based this argument on the case law of the World Trade Organization’s Dispute Settlement Mechanism (WTO DSM). The attitude-behaviour gap has, however, been largely overlooked in their analyses. This behavioural phenomenon provides an explanation as to why there is an inconsistency between what people value or believe and what they actually do. This essay revisits the WTO DSM's case law in order to determine whether such values or beliefs might justify import restrictions. On balance, this essay finds that the WTO DSM has not sufficiently taken the attitude-behaviour gap into account in its interpretation of Article III(4) and Article XX(a) 1994 General Agreement on Tariffs and Trade (GATT).

Amicus Curiae Briefs in the WTO DSM: Good or Bad News for Non-State Actor Involvement?

AbstractSince 1998, non-state actors have had access to submit an ‘amicus curiae’ brief to the WTO DSM. Like other forms of non-state actor involvement in the WTO, amicus curiae access has been controversial. Despite this controversy, non-state actors have made use of this access and submitted amicus curiae briefs. This article asks: What has come of these briefs once they are submitted and what explains how amicus are treated by the DSM? This article empirically maps amici in all disputes from 1998 (after amicus access was first recognized) through 2014, arguing that amicus access is conditioned by a combination of political and legal constraints faced by the WTO panels and AB. In particular, whether the content of an amicus is considered hinges on it having the endorsement of a disputing party and whether its consideration interferes with the WTO DSM's reputation for coherence. In all, these findings have implications for the debate over whether amicus curiae access is good or bad news for the WTO and non-state actor involvement.

From GATT to WTO: The Legalization of Compliance Procedures in Trade Dispute Settlement System

From the twentieth century on, legalization process has been evident in international relations. As a core issue of international law and relation, dispute settlement between States has been evolving from its tit-for-tat strategy to diplomatic and then legal control. Based on the GATT DSP, the WTO DSM has achieved significant progress in legalization. In particular, as more DSM decision have been complied by member States, legalization process of trade dispute resolution via WTO is regarded promising. From the viewpoint of the legalization theory, in comparison to the GATT, the compliance of the WTO DSM’s decisions have become more precise. The WTO members have granted more authorities to its panel of the AB or DSB. It means that in the aspect of compliance of the WTO DSM’s decisions, the degree of delegation to the DSB has been lifted to a higher level.

The TBT Panels: US–Cloves, US–Tuna, US–COOL

AbstractIn a series of controversial 2011 decisions, WTO DSM Panels sought to reconcile legitimate regulatory interests of the state with various obligations to treat imported products in an even-handed and not unnecessarily trade-restrictive manner. Among the key points of contention were which obligation pertained in each case – national treatment, limits on technical regulations, or rules governing standards. In each case, the Panel imposed significant restrictions on national regulatory practices, and in each case the Panel reasoning was challenged by the Appellate Body. This paper addresses some of the key legal and economic issues raised in the original Panel decisions, leaving the late-breaking Appellate Body decisions for future analysis. Given the unsettled nature of the terrain, the economic analysis focuses primarily on the question of national treatment, while the legal analysis deals with other interesting points that emerge from these rulings, such as the appropriate level of deference to international standards and the legitimacy of labeling requirements.

Assessing the success of the WTO DSM: Lessons from softwood lumber IV

Assessing the success of the WTO DSM: Lessons from softwood lumber IV