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Full-Text Articles in Dispute Resolution and Arbitration

The Role Of The Registry And Legal Division Of The African Court Of Human And People's Rights In Dispute Settlement, Olabisi D. Akinkugbe, Morris K. Odeh Jan 2022

The Role Of The Registry And Legal Division Of The African Court Of Human And People's Rights In Dispute Settlement, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement” through a comparative analysis of the role of the Secretariat within the African Court. Despite the growing …


Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant Jan 2020

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.


Wto Dispute Settlement And The Appellate Body Crisis: Insider Perceptions And Members’ Revealed Preferences, Matteo Fiorini, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste, Robert Wolfe Jan 2020

Wto Dispute Settlement And The Appellate Body Crisis: Insider Perceptions And Members’ Revealed Preferences, Matteo Fiorini, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste, Robert Wolfe

Faculty Scholarship

The WTO dispute settlement system is in crisis, following the decision of the United States to block new appointments to the Appellate Body (AB). The AB went into hibernation in December 2019, not having enough sitting members to be able to operate. What do WTO members think of the performance of WTO dispute settlement? How much do WTO members care about the existence and operation of an appeals mechanism? In this article, we report on the results of a survey of WTO Members’ perceptions of the AB and the role it plays (should play). We complement this with data on …


Wto Dispute Settlement: Can We Go Back Again?, Rachel Brewster Jan 2019

Wto Dispute Settlement: Can We Go Back Again?, Rachel Brewster

Faculty Scholarship

The world's twenty-year experiment with a rule-based international trading order is most likely ending. Trade wars are raging again for the first time in two decades as World Trade Organization (WTO) members unilaterally impose and counterimpose sanctions. In Geneva, the WTO Appellate Body, whose existence is essential to the functioning of the WTO Dispute Settlement Understanding (DSU), is on a trajectory to shut down in December 2020. For all the fireworks, however, many commentators retain an optimism that the recent events will be a passing phase and that the world will return to a more law-oriented trading system after the …


Dictum On Dicta: Obiter Dicta In Wto Disputes, Henry S. Gao Jul 2018

Dictum On Dicta: Obiter Dicta In Wto Disputes, Henry S. Gao

Research Collection Yong Pung How School Of Law

This paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate …


Us-Cool Retaliation: The Wto’S Article 22.6 Arbitration, Chad P. Bown, Rachel Brewster Jan 2017

Us-Cool Retaliation: The Wto’S Article 22.6 Arbitration, Chad P. Bown, Rachel Brewster

Faculty Scholarship

This paper examines the World Trade Organization’s Article 22.6 arbitration report on the dispute over the United States’ country of origin labeling (US–COOL) regulation for meat products. At prior phases of the legal process, a WTO Panel and the Appellate Body had sided with Canada and Mexico by finding that the US regulation had negatively affected their exports of livestock – cattle and hogs – to the US market. The arbitrators authorized Canada and Mexico to retaliate by over $1 billion against US exports – the second largest authorized retaliation on record and only the twelfth WTO dispute to reach …


International Investment Agreements: Impacts On Climate Change Policies In India, China And Beyond, Lise Johnson, Brooke Güven Nov 2016

International Investment Agreements: Impacts On Climate Change Policies In India, China And Beyond, Lise Johnson, Brooke Güven

Columbia Center on Sustainable Investment Staff Publications

Mitigating and adapting to climate change will require a fundamental reorientation of our global economy as we move away from fossil fuels and transition to a low carbon and climate-resilient world. This reorientation depends on government actions to help catalyze and channel financial flows in new directions and away from business-as-usual practices.

International investment agreements (IIAs) – treaties that now number over 3,000 and have the objective of promoting and protecting cross-border investment flows_could potentially play a key role in these efforts to scale up and (re)direct investments to meet climate change mitigation and adaptation needs. As presently drafted and …


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 …


Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton Jan 2014

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …


Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster Jan 2013

Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster

Faculty Scholarship

The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …


Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis Jan 2012

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …


The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster Jan 2011

The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster

Faculty Scholarship

The World Trade Organization's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half. First, the TRIPS Agreement's requirement that developing states make the domestic enforcement of intellectual property rules …


The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster Jan 2011

The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster

Faculty Scholarship

One of the major innovations of the World Trade Organization’s (“WTO”) Dispute Settlement Understanding (“DSU”) is the regulation of sanctions in response to violations of trade law. The DSU requires governments to receive multilateral approval before suspending trade concessions and limits the extent of retaliation to prospective damages. In addition, the DSU permits governments to impose only conditional sanctions: sanctions for violations that continue after the dispute resolution process is complete. This enforcement regime creates a remedy gap: governments cannot respond, even to obvious breaches, until the end of the dispute resolution process (and then only to the extent of …


Special 301 Of The Trade Act Of 1974 And Global Access To Medicine, Sean Flynn Jan 2010

Special 301 Of The Trade Act Of 1974 And Global Access To Medicine, Sean Flynn

Articles in Law Reviews & Other Academic Journals

Since its inception in 1988, the United States Trade Representative’s “Special 301” adjudication of foreign intellectual property law standards has been used to promote policies restricting access to affordable medications around the world. President-elect Obama released a platform promising to “break the stranglehold that a few big drug and insurance companies have on these life-saving drugs” and pledged support for “the rights of sovereign nations to access quality-assured, low-cost generic medication to meet their pressing public health needs.” The 2009 and 2010 Special 301 reports, however, indicate that the Obama Administration has not yet implemented this pledge into administration trade …


Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster Jan 2006

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster

Faculty Scholarship

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international …


The Sutherland Report And Dispute Settlement, Mark L. Movsesian Jan 2005

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …


International Decision: United States--Continued Dumping And Subsidy Offset Act Of 2000, Mark L. Movsesian Jan 2004

International Decision: United States--Continued Dumping And Subsidy Offset Act Of 2000, Mark L. Movsesian

Faculty Publications

This brief article is a report of an international decision of the World Trade Organization Appellate Body on January 16, 2003, concerning the United States’ Continued Dumping and Subsidy Offset Act of 2000 (WT/DS217 & 234/AB/R). Eleven WTO members—Australia, Brazil, Canada, Chile, the European Communities, India, Indonesia, Japan, Korea, Mexico, and Thailand—filed a challenge to the Byrd Amendment in the summer of 2001. A WTO dispute settlement panel, agreeing with the complaining parties, made two major findings. First, the panel concluded that the Byrd Amendment constitutes an impermissible specific action against dumping and subsidization under the Antidumping and SCM Agreements. …


Against Global Governance In The Wto, John O. Mcginnis, Mark L. Movsesian Jan 2004

Against Global Governance In The Wto, John O. Mcginnis, Mark L. Movsesian

Faculty Publications

In "Global Governance and the WTO," Professor Andrew Guzman has done an impressive job of articulating a vision of the World Trade Organization (WTO) that many international lawyers share. In this vision, the WTO's mission should be expanded beyond its present task of facilitating tariff reductions and preventing covert protectionism. Rather, the WTO should take on substantive authority in a wide variety of non-trade areas, including the environment, labor, human rights, and public health. Unlike many people who share this vision, Guzman takes the time to describe how it might best be accomplished. He advocates specialized WTO departments and periodic …


Enforcement Of Wto Rulings: An Interest Group Analysis, Mark L. Movsesian Jan 2003

Enforcement Of Wto Rulings: An Interest Group Analysis, Mark L. Movsesian

Faculty Publications

The WTO's Dispute Settlement Understanding ("DSU") provides that disputes are to be resolved in adversarial proceedings before impartial panels of experts. These panels have authority to decide whether members' laws conform to WTO requirements; members may appeal rulings to a permanent Appellate Body within the organization, which has the final say on questions of law and legal interpretation. Under the DSU, if a member fails to comply with a final ruling in a dispute, the prevailing party may retaliate by suspending trade concessions that it owes the offending member. This retaliation can continue until the offending member implements the WTO's …


Perceptions About The Wto Trade Institutions, John H. Jackson Jan 2002

Perceptions About The Wto Trade Institutions, John H. Jackson

Georgetown Law Faculty Publications and Other Works

This article, based on a lecture given at the inauguration ceremony for the new Advisory Centre on WTO Law, describes the broader world trading landscape into which this new Centre emerges. Taking into account the possible implications of the events on September 11, this article provides a brief analysis of the current trade policy climate, asserting the necessity of institutions for the successful functioning of markets. After a short institutional history of the GATT/WTO, the author describes the importance of institutional rules, treaty text, and practice for the success of the WTO and presents the current debate over what the …


A Problem Of Process In Wto Jurisprudence: Identifying Disputed Issues In Panels And Consultations, Glenn R. Butterton Jan 2000

A Problem Of Process In Wto Jurisprudence: Identifying Disputed Issues In Panels And Consultations, Glenn R. Butterton

Articles

No abstract provided.


The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy Jan 2000

The Annihilation Of Sea Turtles: Wto Intransigence And U.S. Equivocation, Lakshman Guruswamy

Publications

No abstract provided.


The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian Jan 2000

The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian

Faculty Publications

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …


Remarks, John H. Jackson Jan 2000

Remarks, John H. Jackson

Georgetown Law Faculty Publications and Other Works

The limits of international trade must be understood within the context of the institutional framework of the WTO, in particular, the decision-making and dispute settlement processes. The WTO dispute settlement rules are contained in the Dispute Settlement Understanding (DSU), which is Annex 2 to the WTO agreement. The DSU includes some comments on the philosophy, the direction and the purposes of the dispute settlement procedures. Article 3.2 of the DSU has some very interesting phrases. One of those phrases (roughly paraphrased) says, ''None of the reports of the dispute settlement procedure should result in a change, addition, or subtraction from …


Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian Jan 1999

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …