International Trade Law Commons^™

Making Wto Remedies Work For Developing Nations: The Need For Class Actions, Phoenix X.F. Cai

Sturm College of Law: Faculty Scholarship

At the heart of the WTO lies a set of rules and negotiated trade terms, such as tariffs, designed to promote trade liberalization or the removal of barriers to free trade. When a WTO member nation violates a rule or trade term, the affected nation or nations may bring a complaint under the dispute settlement procedures of the WTO.2 When nations win cases at the WTO, the preferred remedy is that the losing nation withdraws the offending measure or rule. This action is akin to stopping the embezzlement going forward. The remedy is purely prospective. If withdrawal occurs, the suit …

Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell

UF Law Faculty Publications

Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more …

Settlement Of Disputes Under The United States-Central America-Dominican Republic Free Trade Agreement, David A. Gantz

ExpressO

The U.S. – Central America – Dominican Republic Free Trade Agreement is one of nearly a dozen post-NAFTA FTAs that have been concluded by the United States since 2000 with nations in Latin America, the Middle East and Asia. All of these newer agreements are based on NAFTA, but they differ in significant respects, particularly in the chapters relating to dispute settlement. The changes reflect, most significantly, U.S. government experience with NAFTA dispute settlement, particularly with regard to actions brought by private investors against the United States and other NAFTA governments under NAFTA’s investment protection provisions (Chapter 11). However, they …

China's Participation In The Wto: A Lawyer's Perspective, Henry Gao

Research Collection Yong Pung How School Of Law

On 10 November 2001, China finally acceded to the World Trade Organization (WTO) after a marathon negotiation spanning 15 years. China's membership in the WTO raises interesting questions for both the WTO and China. For the WTO, the question is how to deal with China?a huge country of growing importance as a major global exporter and importer but is still in economic transition. For China, the question is how to implement the numerous obligations in the WTO accession package. This paper sets out by reviewing China's experience in the General Agreement on Tariffs and Trade (GATT) and the WTO. It …

The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis

ExpressO

This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general, …

Balancing Judicial Economy, State Opportunism, And Due Process Concerns In The Wto, Ana Frischtak

Michigan Journal of International Law

This Note will focus on an aspect of the dispute settlement proceeding that has not been officially proposed for reform: the withdrawal of and amendments to measures being challenged by a complaining Member during the course of the proceedings. This aspect raises issues of judicial economy, state opportunism, and due process. In particular, this practice, where the respondent country to a dispute withdraws or amends the measure being challenged during the course of proceedings, threatens to undermine the legitimacy of the dispute settlement system as a fair and transparent adjudicating body.

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 …

Let's Stick Together (And Break With The Past): The Use Of Economic Analysis In Wto Dispute Litigation, Petros C. Mavroidis

Faculty Scholarship

The treatment of a number of issues that are being routinely discussed in WTO dispute settlement practice could benefit substantially, were economists to be institutionally implicated in the process. As things stand, the participation of economists in dispute settlement proceedings is infrequent and erratic: for all practical purposes, it depends on the discretion of WTO adjudicating bodies. There is indirect evidence that recourse to such expertise has been made, albeit on very few occasions. Institutional reforms are necessary; otherwise, it seems unlikely that the existing picture will change in the near future. A look into ongoing negotiations on the DSU …

The Varied Policies Of International Juridical Bodies- Reflections On Theory And Practice, John H. Jackson

Michigan Journal of International Law

It can be seen that "fragmentation" can have several dimensions, and that the difference between juridical approaches as well as legislative approaches to treaty or other norm stating documents can result not only from different institutional settings, but also from different policy goals assumed for differing dispute settlement systems.

Reply To Joshua Meltzer, Joost Pauwelyn

Michigan Journal of International Law

A reply to Joshua Meltzer's comment on the author's paper Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands

Interpreting The Wto Agreements- A Commentary On Professor Pauwelyn's Approach, Joshua Meltzer

Michigan Journal of International Law

In his paper, Professor Pauwelyn argues that pursuant to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (Vienna Convention), the Appellate Body should consider other rules of international law in the interpretation of the WTO Agreements, when that law reflects the "common intentions" of the parties to the WTO. He argues that this does not mean that "all the parties to the WTO treaty must have formally and explicitly agreed, one after the other, to the new non-WTO rule; nor even that this rule must be otherwise legally bind all WTO members; but rather, that this new …

The Case For Tradable Remedies In Wto Dispute Settlement, Kyle Bagwell, Petros C. Mavroidis, Robert W. Staiger

Faculty Scholarship

In response to concerns over the efficacy of the WTO dispute settlement system, especially in regard to its use by developing countries, Mexico has tabled a proposal to introduce tradable remedies within the Dispute Settlement Understanding. The idea is that a country that has won cause before the WTO, and who is facing non-implementation by the author of the illegal act but feels that its own capacity to exercise its right to impose countermeasures is unlikely to lead to compliance, can auction off that right. The attractiveness of this idea is that it offers an additional possibility to injured WTO …

Cross-Examining Expertise In The Wto Dispute Settlement Process, Christopher T. Timura

Michigan Journal of International Law

Part I of this Note surveys some of the recent contributions that social theorists and social scientists have made to our understanding of the role of experts in society, and also the structure of expert communities. Experts are everywhere in modern life, and individuals are with increasing frequency asked to extend their trust to experts and bodies of knowledge that they have little or no opportunity to question. Part II highlights how the WTO Agreement deals with experts, using recent WTO panel reports to illustrate the ways in which the DSB has operationalized its various provisions. Part III suggests two …

The Asbestos Case And Dispute Settlement In The World Trade Organization: The Uneasy Relationship Between Panels And The Appellate Body, Sydney M. Cone Iii

Michigan Journal of International Law

This article deals with the working-level dispute-settlement apparatus of the World Trade Organization ("WTO"). In particular, it discusses the work of the Appellate Body and, functioning below it, panels established by the WTO to conduct proceedings in individual cases. It focuses on the relationship between the Appellate Body and panels, and on the responsibilities of the Appellate Body in the context of that relationship.

The World Trade Organization's Dispute Settlement Resolution In United States--Anti-Dumping Act Of 1916, Jeffrey S. Beckington

Vanderbilt Journal of Transnational Law

The evolving jurisprudence of the World Trade Organization (WTO) is a fascinating phenomenon still in its early stages. That it exists is testament to a recognition by the WTO's Member States that a substantial ceding of national sovereignty to the WTO is necessary, or at least advisable, in order to support an international mechanism designed to facilitate and maintain orderly trade in goods and services across national boundaries. This partial relinquishment of jurisdiction, however, understandably has been accompanied by certain misgivings and hedging by Member States individually and particularly by the United States.

The boldness and tension underlying the political …

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

Arbitral Situs: Considerations And Consequences, Rajdeep Singh

LLM Theses and Essays

It is the law of the forum that is applicable to matters like arbitrability of the dispute, the validity of the arbitration agreement, the jurisdiction of the arbitrators, their appointment, removal and replacement and the challenge to their authority. Apart from these matters the law of the arbitral situs also governs the conflict of laws rules applicable to the dispute. Though the principle of party autonomy allows the parties to agree to a procedural law other than that of the arbitral situs, they still have to comply with the mandatory provisions of the law of the venue. In case they …

The Long Road Ahead: Dispute Settlement In The Gatt/Wto, Dukgeun Ahn

Michigan Journal of International Law

Review of International Trade Law and the GATT/WTO Dispute Settlement System by Ernst-Ulrich Petersmann

The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis

Faculty Scholarship

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …

Should Unclos Or Gatt/Wto Decide Trade And Environment Disputes?, Lakshman D. Guruswamy

Publications

No abstract provided.

The Promise Of The United Nations Convention On The Law Of The Sea (Unclos): Justice In Trade And Environment Disputes, Lakshman Guruswamy

Publications

No abstract provided.

The Dispute Settlement Systems Of Wto And Nafta - Analysis And Comparison, Patrick Specht

LLM Theses and Essays

The aim of this thesis is to determine whether the dispute settlement institutions of the WTO and the NAFTA meet the standard, to compare the two systems, and to evaluate them. An issue that should be dealt with first is the question of comparability. Is it possible to compare the WTO and the NAFTA regarding their conflict resolution procedures? Or are they too different because one agreement works on the global level and the other on a regional one? Their institutions and their scope may differ, but they are still conducive to comparison because the underlying structure of these two …

Of Substantial Interest: Third Parties Under Gatt, Chi Carmody

Michigan Journal of International Law

This article's examination of the status of third parties under GATT is important for several reasons, one of which is the proliferation of third party participation as demonstrated by Bananas III. A second reason for its importance is that there has been little written about third parties under GATT. This neglect stands in sharp contrast to ample literature on the related subject of greater public participation in the WTO. The oversight could be a function of GATT dispute resolution, which did not always enjoy the level of public attention it garners today. Until recently the GATT system handled no …

The Limits Of Economic Power: Section 301 And The World Trade Organization Dispute Settlement System, C. O'Neal Taylor

Vanderbilt Journal of Transnational Law

Since World War 1I, the United States has sought trade liberalization through the use of multilateral and unilateral actions under the General Agreement on Tariffs and Trade (GATT) and Section 301 of the Trade Act of 1974, respectively. Unilateralism by the United States has involved the forceful opening of foreign markets by the threat of sanctions, such as blocking access to the U.S. market. Such unilateral actions led the world trading system into the most recent multilateral negotiations, the Uruguay Round. As a result, the United States conceded to an effort to achieve trade liberalization through the expansion of GATT …

Reformulated Gasoline Under Reformulated Wto Dispute Settlement Procedures: Pulling Pandora Out Of A Chapeau?, Jeffrey Waincymer

Michigan Journal of International Law

Part I of the article begins by outlining existing GATT/WTO provisions concerning trade-related environmental measures which were relevant to the Reformulated Gasoline case. Part II then outlines the facts in the dispute and gives a brief introduction to the decisions at the Panel and Appellate Body stages. Part III deals with the present and potential implications for the appellate process in terms of the substance of the dispute, the methodology and procedure adopted, and the wider issues that the case brings to attention. This Part also addresses some of the theoretical and practical issues that affect the question of the …

The World Trade Organization: A New Legal Order For World Trade?, Thomas J. Dillon Jr.

Michigan Journal of International Law

This article will describe in some detail the most dramatic modifications within the framework of the multilateral trading system designed to support the projected trade expansion, namely, the new organizational structure under the WTO and the new dispute settlement procedures. The article will evaluate these changes against the backdrop of the Bretton Woods System as originally conceived and will highlight the debate surrounding whether the nature of the trade regulating body ought to be adjudicatory or negotiatory. Finally, the author offers conclusions, perspectives, and comments regarding the future development of the world trading system.

U.S.-Thailand Trade Disputes: Applying Section 301 To Cigarettes And Itellectual Property, Ted L. Mcdorman

Michigan Journal of International Law

Irrespective of the close economic and strategic relationship between Thailand and the United States, the United States has utilized Section 301 (and Special 301), and the consequent threat of trade retaliation, in its relations with the Land of Smiles. The purpose of this article is to examine the operation of Section 301 and Special 301 regarding trade in cigarettes and intellectual property.

Can Buckley Clear Customs?, Harold H. Bruff

Publications

No abstract provided.

Strategy And Compliance With Bilateral Trade Dispute Settlement Agreements: Ustr's Section 301 Experience In The Pacific Basin, Michael P. Ryan

Michigan Journal of International Law

The paper is laid out in five parts. First, the conceptual linkages among strategy, goals, and agreement compliance are developed. Second, the study research design and findings are reported. Third, the strategy of trade dispute settlement negotiation is discussed with regard to bureaucratic politics. Fourth, case evidence that illustrates the key study findings is reviewed. Finally, effective monitoring and the notion of unilateral surveillance within the context of the present GATT-based, multilateral trading system are explored.

The Gatt Dispute Settlement Procedure In The 1980s: Where Do We Go From Here?, Patricia Kalla

Penn State International Law Review (1982 - 2011)

This Comment will examine the GATT dispute settlement procedure in relation to its operative context. Emphasis is on determining the true origin of the dispute settlement system's inefficacy. An overview of historical developments will be followed by an explanation of the dispute settlement law and procedure. Noncompliance with GATT rules and remedial efforts to correct that noncompliance will be examined at some length. Finally, the necessity for future reform of the dispute settlement procedure will be discussed.