It analyzes the effectiveness of the WTO dispute settlement system over 25 years of existence in four areas: (1) effectiveness of dispute settlement; (2) inclusiveness of the dispute resolution process; (3) compliance with WTO obligations; and (4) legislative-judicial balance in dispute resolution. The study also addresses the ongoing procedural and substantive problems, the current AB problem facing the WTO dispute settlement system, and the options available to resolve these issues. The mini-thesis also describes and addresses alternatives to the conflict resolution structure in the WTO.
Appellate body, dispute settlement system, international trade, World Trade Organization, dispute settlement body, dispute settlement understanding, United States.
- Background to the problem
- Research problem
- Motivation
- Research question
- Research methodology
- Framework of the mini-dissertation
- Relevance for the research unit
This study looks at international trade dispute settlement mechanisms to explore alternatives to WTO dispute settlement mechanisms. 18 This article states: “The WTO dispute settlement system is a central element in providing security and predictability to the multilateral trading system. The WTO dispute settlement system is a central element in providing security and predictability to the multilateral trading system.
Are there viable alternatives or options to WTO dispute settlement mechanisms that members can explore given the prevailing AB crisis.
- Introduction
- Relevant edifices of the WTO DSS
- Effectiveness of the WTO DSS
- The efficiency of dispute resolution
- Inclusiveness of DS process
- Compliance with the WTO obligations
- Legislative-judicial balance in DS
- Concluding remarks
Five relevant structures of the WTO DSS can be identified, which have a significant impact on the effectiveness of the system. The existing literature that attempts to answer these questions contains important debates about the performance of the WTO DSS. A review of cases submitted to the WTO's DSS shows that there were 597 requests as of October 30, 2020.
93 Trade values refer to one of the non-trade policy objectives in the WTO treaties, such as art.
Introduction
Issues arising and ways of addressing them
- Procedural issues
- Substantive issues
- The "AB crisis"
This leads to the second issue, and a scenario may exist where one member of the WTO has more than one judge in the AB. Various solutions have been proposed to address these issues, including the removal and reappointment of the AB judges. Since mid-2017, the US administration has objected to filling the vacancies at the AB.132 Decisions by WTO DSB must be made by consensus in the appointment of such judges.
Consequently, a complainant (if the panel report is unfavorable or does not provide sufficient relief) or guilty party (or the respondent who is at a loss at the panel (for a hope of a milder ruling at the AB) can block the acceptance of the panel report by simply filing an appeal. The USA's basis for blocking the appointment of the AB's judges includes both procedural and substantive concerns. First, the USA's concern, which is procedural in nature, lies under Rule 15 of the AB Working Procedures.
This article stipulates that members of the AB may continue to preside over disputes after their term of office has expired. The US does not view this rule as a DSB decision, but as an AB notice. The US deplored the construction of the phrase SOEs, which for them implied AB's bias in terms of subsidy countervailing measures.
Ironically, the US appeals to the unavailable AB division after blocking the appointment of the judges. The AALCO Secretariat has described the solution of majority voting in the appointment of the AB judges due to diplomatic constraints and seems impossible from a legal point of view.
Concluding remarks
Introduction
Viable alternatives to the WTO DSS
- Bilateral or plurilateral ad hoc agreements
- Article 5 of the DSU: good offices, conciliation, and mediation
- DS under FTAs, PTAs or RTAs
The losing parties are more likely to appeal, knowing that the AB is non-functional, simply to frustrate the approval of the reports by the DSB (except by positive consensus or until AB judges are appointed and such appeals are completed) . In the Indonesia-Iron or Steel Products case, the parties entered into such a non-appeal agreement for their compliance dispute under Article 21.5 of the DSU compliance procedure.167. The arbitration within the meaning of Article 25, like the agreement without appeal, prevents an appeal "in the void" where parties appeal to the non-functional AB, which leads to the blocking of the approval of the reports by the DSB .
The procedures for agreement are based on both the substantive and procedural aspects of the appeal review under Article 17 of the DSU and as set out in Annex 1 of the MPIA. However, persons of the same nationality cannot be appointed as arbitrators in the same dispute. 180. This is due to the provision expressed in the MPIA that the arbitration decision is final and is not open to appeal as provided in Article 25.4 of the DSU.
It can be concluded that the drafters of the DSU included Article 5 as a means of encouraging disputing parties to negotiate settlements as opposed to adjudication.194. As a result, the invocation of the ADR mechanisms under Article 5 of the DSU remains unavailable. Even if there was no vacancy in the DG position, the above analysis shows that the ATB mechanism established under the WTO DSS is not yet popular among the members.
Following the signing of the EPA, SACU introduced several measures to limit poultry imports. It is unclear whether WTO members will increase the use of the DS mechanisms found in PTAs or FTAs, as the WTO's AB is dysfunctional.
Concluding remarks
This can be compared to the DS mechanism under CUSMA which does not involve a procedural flaw – therefore it may open the door to credible DS under that agreement. Pauwelyn found that (as of July 1, 2019), almost a quarter of requests submitted to the WTO for consultation were made by parties that have an existing PTA that provides a provision for DSS.207 Despite this development, the world's major players in international trade PTAs involving DS procedures with commercial remedies are avoided. 208. The biggest challenge with using PTAs or FTAs as an alternative to WTO DSS is that they cannot offer disputing parties all the features found in WTO DSS. , including the participation of all members as third parties, monitoring and evaluation. of the decision of the DSB and the technical support provided by the Secretariat. 209.
The alternative no-appeal, and referral to arbitration, is seen as the panacea for the unfolding crises at the WTO AB. Accordingly, WTO members should carefully consider the most appropriate alternative before using the same for DS. A common feature of the alternatives is that they are all interim solutions, and the ideal permanent solution would be the revival of the WTO DSS which provides for: appellate review which is mandatory; exclusive; and rule-based; as well as binding mechanisms for the resolution of trade disputes.
The WTO members should therefore work to improve negotiations and find a consensus to address the AB impasse and reform the WTO DSS as a whole.
Introduction
Identified problems and issues
The WTO DSS has been plagued by procedural and substantive issues over the years, as discussed in chapter three. The United States, in particular, has raised concerns that the AB is overstepping its mandate and engaging in judicial activism, or lawmaking, against the intent of WTO treaty negotiators. With the AB crisis now a reality, WTO DSS researchers have now changed their minds over the years.
34; those responsible", Bossche referred to: the United States (which has vetoed the appointment of AB judges since 2017); the DSB; the General Council; the Ministerial Conferences; the WTO members (the members' inability to act effectively). with problems through the DSU review);217 and the AB for not taking the necessary measures to. Other researchers suggest that the WTO DSS has been a problem and victim of its own success.218 This means that the effectiveness of the AB is considered to be exceeding its mandated by members, particularly the U.S. The inability of the WTO to conclude the DOHA round of multilateral negotiations, since its creation, has also been blamed for AB.219's judicial activism.
In weathering the AB crisis, viable alternatives to the WTO DSS exist for members to explore, and this answers the research question. The only alternative that still maintains the appeals process seems to be Article 25 of the DSU, which deals with appellate arbitration, which has some binding force under the WTO's DSS. The WTO DSS was created with the intention of making the handling of international trade disputes much more uniform and stable, but unfortunately it is in crisis.
The only DS mechanism that provides predictability and stability of the multilateral trading system for members is the WTO DSS. Members should therefore work to breathe new life into the AB, improving consultations and negotiations in order to bring much-needed reforms to the WTO DSS.
Recommendations
- Encouraging more WTO members to join the MPIA
- Hillman's approach of establishing a separate "Rules Appellate Body" within
- Permanent panel chairs
- Amendment to the DSU to address procedural and substantive issues
- WTO reforms
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Anon 2019 Statements by the United States at the Assembly of the WTO Dispute Settlement Body Geneva, June 24, 2019 at 14 https://geneva.usmission.gov/wp-co ntent/uploads/sites/290/Jun24.DSB_.Stmt_. as-deliv.fin_.public.pdf accessed 16 November 2020. US Mission to International Organizations in Geneva 2018 Statement by the US at the meeting of the WTO Dispute Settlement Body, Geneva, 29 October 2018, para 11-26 https: //geneva .usmission.gov accessed on 02 June 2021. WTO date unknown Twelfth WTO Ministerial Conference https://www.wto.org/english/the wto_e/minist_e/mc12_e/mc12_e.htm accessed on 16 November 2020.
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