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Full-Text Articles in Law

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste Jan 2020

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This paper presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing ...


Disruptive Construction Or Constructive Destruction? Reflections On The Appellate Body Crisis, Henry S. Gao Jan 2020

Disruptive Construction Or Constructive Destruction? Reflections On The Appellate Body Crisis, Henry S. Gao

Research Collection School Of Law

Over the past few months, the blockage of the Appellate Body appointment process by the United State (hereinafter U.S.) has emerged as the biggest existential threat to the World Trade Organization (hereinafter WTO). In response to the criticisms from other WTO Members, the U.S. justified its action as a way to raise people’s attention on long-standing problems in the Appellate Body (hereinafter AB). Are the U.S. criticisms valid? Even if assuming that the U.S. allegations are correct, is the specific approach that the U.S. has taken legitimate? Drawing from both the treaty text and ...


Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim Jan 2018

Dissenting Opinions In The Wto Appellate Body: Drivers Of Their Issuance & Implications For The Institutional Jurisprudence, Petros C. Mavroidis, Evan Y. Kim

Faculty Scholarship

The Appellate Body (AB) of the WTO has issued over 140 reports but only eight separate opinions, four of which are genuinely dissenting. Such paucity, in fact, is the WTO’s implicit tradition inherited from GATT of prioritizing unanimous decisions, hoping they solidify the institution’s legitimacy and countries’ confidence in the system. But at the more individual level, an AB member’s decision to dissent is driven by multiple factors that have implications for the institution’s jurisprudence. First, the factors explain how the symbiotic relationship between an AB member and his or her nominating country – whose interests turn ...


The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis Jan 2016

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I ...


Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan Jun 2015

Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan

Articles

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of ...


The Conundrum Of Wto Accession Protocols: In Search Of Legality And Legitimacy, Julia Ya Qin Jan 2015

The Conundrum Of Wto Accession Protocols: In Search Of Legality And Legitimacy, Julia Ya Qin

Law Faculty Research Publications

Accession to the World Trade Organization differs from that of other international organizations in one major aspect: the WTO may prescribe more stringent rules for acceded members, depending on the result of individual accession negotiations. These country-specific rules are set out in the protocols of accession and now form a significant part of WTO law. However, questions concerning the legality and legitimacy of such rules remain to be answered. The accession protocols effectively modify the provisions of the WTO multilateral trade agreements, but the legal basis for so doing has never been properly explained and the relationship between the accession ...


United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan Jan 2012

United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan

Articles

US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS ...


International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan Jan 2010

International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan

Book Chapters

I am pleased to have the opportunity to respond to Andreas Paulus’s very interesting contribution, and to elaborate on some of the matters he raises. As will be all too obvious, I am not an expert on general public international law. I undertook this assignment in the hope that I would learn something (as I have), and that I would eventually think of something useful to say (less clear). Happily, the one area of international law where I do have some expertise is the law of the World Trade Organization (WTO). The WTO is often used as an example ...


The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan Jan 2007

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically ...


A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan Jan 2007

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning ...


Taming The Dragon: China's Experience In The Wto Dispute Settlement System, Henry Gao Jan 2007

Taming The Dragon: China's Experience In The Wto Dispute Settlement System, Henry Gao

Research Collection School Of Law

To many observers, a major challenge raised by China's accession to the WTO is whether the WTO dispute settlement system could cope with China, one of the major traders in the world with an economy that is halfway between a planned economy and a market economy. In this article, the author tries to answer this question by reviewing China's experience in the WTO dispute settlement system. Historically, the senior leadership in China attached disproportionate importance to the WTO dispute settlement system and preferred to avoid using the system. Thus, in the first four cases in which China was ...


Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Iii:2), Donald H. Regan Jan 2006

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Iii:2), Donald H. Regan

Book Chapters

In EC-Asbestos the Appellate Body has told us that (l) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III: l that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile- Alcohol the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection," we must consider "the purposes or objectives of a Member's legislature and government as a whole"- in other words, the regulatory purpose of the measure ...


Do World Trade Organization Dispute Settlement Reports Affect The Obligations Of Non-Parties? -- Response To Mcnelis, Donald H. Regan Jan 2003

Do World Trade Organization Dispute Settlement Reports Affect The Obligations Of Non-Parties? -- Response To Mcnelis, Donald H. Regan

Articles

In the June 2003 issue of this Journal, Natalie McNelis argued that when a World Trade Organization (WTO) dispute is settled by a Dispute Settlement Body (DSB) report, even Members who are not parties to the dispute have an obligation to conform their behaviour to legal principles laid down in the report. 1 Although I am generally sympathetic to McNeis's conclusion-and although I think she does a great service by directing our attention to the question of how Members, as opposed to later tribunals, should respond to DSB reports-I think her argument cannot stand as she presents it. After ...


Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan Jan 2003

Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan

Articles

My topic in this article is the role of regulatory purpose under Article III of the GATT, and I regard Bob [Hudec] as the patron saint of efforts to establish the relevance of purpose. His famous "Requiem for an 'Aims and Effects' Test" may have been called a requiem, but it was reluctant and sceptical. Bob thought dispute settlement tribunals ought to consider the regulator's purpose, and he thought they would do so, whatever they said. As decisions on Article III accumulate, we are in the process of learning that he was right on both counts.


Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan Jan 2002

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan

Articles

In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos) the Appellate Body has told us that (1) in interpreting Article 111:4 of the General Agreement on Tariffs and Trade (GATT), we must take explicit account of the policy in Article 111:1 that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile--Taxes on Alcoholic Beverages (Chile--Alcohol) the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection", we must consider "the purposes or objectives of a Member ...


The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan Jan 2000

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III ...