Trade Disputes and the Dispute Settlement Understanding of the WTO

by Hartigan, James C.

• ISBN13: 9781848552067
• ISBN10: 1848552068
• Edition: Reprint
• Format: Hardcover
• Copyright: 2009-02-13
• Publisher: Emerald Group Pub Ltd

Summary

The volume is partitioned into five sub areas, addressing the process of dispute resolution and appeal under the DSU of the WTO; politics and disputes between sovereign nations; power inequities in access to the DSU; specific categories of disputes, such as in agriculture and in intellectual property; and issues pertaining to compliance, enforcement and remedies. In addition to the interdisciplinary focus, this volume showcases the thoughts of both established and emerging scholars, whilst highlighting perspectives from many different countries and regions.

Table of Contents

List of Contributors	p. v
Introduction	p. xv
A Critical Discussion of The Process of Dispute Resolution and Appeal at The WTO	p. 1
The WTO Dispute Settlement System 1995-2006: Some Descriptive Statistics	p. 3
Introduction	p. 3
Who are the complainants and respondents?	p. 5
Which agreements and provisions have been invoked?	p. 12
Winners and losers of legal claims	p. 21
Where do the panelists come from, who selected them, and how many panels have they served on?	p. 24
The duration of the process	p. 27
Instead of conclusions	p. 30
Annex: List of abbreviations of agreements	p. 31
Acknowledgements	p. 31
Reference	p. 31
Issues of Fairness in Dispute Settlement	p. 33
Introduction	p. 33
Fairness in trade relations	p. 36
Interpretation and application of the WTO rules	p. 39
Non-discrimination, national treatment, and fair competition	p. 39
Contingent trade remedy measures and WTO rules	p. 49
National preferences and WTO rules	p. 58
Compliance with DSB rulings and recommendations	p. 63
The use of countermeasures	p. 66
Conclusions	p. 68
Acknowledgement	p. 70
References	p. 71
Licence to Adjudicate: A Critical Evaluation of the Work of the WTO Appellate Body So Far	p. 73
Introductory remarks	p. 73
The function of WTO adjudicating bodies	p. 74
Agents	p. 74
Required to interpret ...	p. 75
An incomplete contract ...	p. 75
Which suffers from ambiguity as well ...	p. 76
And compelled to use yet another incomplete contract in order to complete the original incomplete contract	p. 77
Being a WTO judge: not an enviable position to be in	p. 78
Has the AB honoured its mandate?	p. 78
An agent (most of the time)	p. 78
Has the AB produced a convincing body of case law?	p. 81
Consistency across cases	p. 82
Less litigation in the future	p. 85
Reaction by principals	p. 87
Influence on subsequent lawmaking	p. 87
A partial conclusion	p. 87
Some suggestions (constructing the mold)	p. 88
Acknowledgements	p. 89
References	p. 89
The Evolution and Utilization of The GATT/WTO Dispute Settlement Mechanism	p. 91
Introduction	p. 94
Evolution of the GATT/WTO dispute settlement mechanism	p. 94
Theoretical setup	p. 96
Theoretical model and implications	p. 100
Panel stage	p. 101
Consultation stage	p. 105
Conclusion	p. 114
Appendix	p. 114
References	p. 118
Politics and Trade Disputes	p. 119
Implementing The Agreement: Partisan Politics and WTO Dispute Settlement	p. 121
Patterns of compliance	p. 124
Partisanship, negotiation, and compliance	p. 126
Data and results	p. 130
Case study	p. 135
Conclusion	p. 137
References	p. 137
Dispute Settlement, Compliance and Domestic Politics	p. 139
Introduction	p. 140
Punishment and patience in the standard PD framework	p. 141
Standard PD theories of international cooperation	p. 142
Empirical contradictions of the standard PD theory	p. 143
Domestic politics: driver of compliance and enforcement?	p. 146
Tolerated defection and the DSU: the flexibility theory	p. 147
Domestic politics and punishment for trade violations	p. 154
Conclusions	p. 159
References	p. 160
Power and Inequities in Access to the DSU	p. 165
Developing Country Use of The WTO Dispute Settlement System: Why it Matters, the Barriers Posed	p. 167
Introduction	p. 167
The judicialization of international trade dispute settlement	p. 168
Why participation in WTO dispute settlement matters: tangible, systemic, and shadow effects	p. 171
Some statistics on the system's use	p. 175
Why smaller developing countries do not participate	p. 182
Conclusions	p. 185
Acknowledgements	p. 186
References	p. 187
Why Are so Many WTO Disputes Abandoned?	p. 191
Introduction	p. 191
WTO dispute settlement procedures	p. 193
Literature review	p. 195
WTO disputes, 1995-2004	p. 198
Empirical model and data	p. 201
Results	p. 207
Conclusions	p. 210
References	p. 210
The Usage of The WTO Dispute Settlement System: Do Power Considerations Matter?	p. 213
Introduction	p. 213
Dispute settlement as a sequential game	p. 217
Setup of the game	p. 218
Strategies and Nash equilibria	p. 219
Payoff proxies for the binary decision model	p. 221
General setup of the probit model	p. 221
Selection of payoff proxies	p. 222
Summary of hypotheses	p. 226
Data and estimation	p. 227
Sample selection	p. 227
Data Description	p. 228
Estimation and results	p. 230
Robustness	p. 232
Excursus: a note on Guzman and Simmons (2005)	p. 234
Concluding remarks	p. 236
Acknowledgement	p. 237
Appendix	p. 237
Proof of Proposition 1	p. 237
Included disputes	p. 238
Construction of a statistical sample selection criterion	p. 238
References	p. 240
Specific Issues in Dispute Settlement	p. 243
Agricultural Trade Disputes In The WTO	p. 245
Introduction	p. 245
An overview of agricultural trade disputes under the WTO	p. 246
Market access complaints in agriculture	p. 253
Bananas	p. 253
Beef hormones	p. 260
EC-GIs	p. 264
Agricultural subsidy cases	p. 267
The Canadian dairy case	p. 267
The US cotton case	p. 269
The EC sugar case	p. 271
Conclusion	p. 274
Annex	p. 277
References	p. 281
WTO Dispute Cases Relating to Food Safety Issues	p. 283
WTO agreement relevant to food safety issues	p. 283
Major WTO agreements relevant to food safety issues	p. 283
The GATT 1994	p. 284
The SPS agreement	p. 286
The TBT agreement	p. 286
WTO dispute cases relating to food safety issues	p. 287
The EC Hormones case	p. 288
The EC/GMO case	p. 290
The relationship between the SPS and other principles of international law in the WTO dispute settlement procedure	p. 292
The EC approval procedure of GMO products and Annex A(1) of the SPS	p. 294
National treatment in Annex C.1 (a) of the SPS	p. 295
Burden of proof issues in the SPS	p. 296
Concluding remarks	p. 300
Trade Dispute Diversion: The Economics of Conflicting Dispute Settlement Procedures Between Regional Trade Agreements and the WTO	p. 303
Introduction	p. 303
The role of the DSP in shaping trade agreements	p. 305
The procedural mechanisms	p. 305
The self-enforcement underpinnings	p. 309
The causes and consequences of differing DSPs	p. 310
Different rules for settling disputes	p. 310
The main Differences and how they matter	p. 313
"Choice of forum" and the link to the WTO	p. 315
The model	p. 316
The solution with and without renegotiation	p. 318
The impact of choice of forum	p. 320
Some preliminary evidence and indications	p. 325
Summary and conclusions	p. 326
References	p. 327
The ADA and The DSU of The WTO	p. 331
Introduction	p. 332
A model	p. 335
Stage three: dispute resolution	p. 337
Stage two: compliance with the ADA	p. 339
Stage one: negotiation of the ADA	p. 342
Conclusion	p. 343
References	p. 344
Compliance, Enforcement, and Remedies	p. 347
Trade Agreements and Dispute Settlement in the WTO System	p. 349
Introduction	p. 349
The model: economics	p. 351
International trade	p. 352
The model: policy formation	p. 352
Lobbies	p. 352
Policy choice	p. 353
The non-cooperative equilibrium	p. 354
Best responses	p. 355
Equilibrium	p. 355
Trade agreements	p. 356
The exchange of market access	p. 356
Trade agreements to exchanges market access	p. 357
Dispute settlement	p. 359
Dispute Settlement in the theory of trade agreements	p. 362
Trade-related actions	p. 362
The sequence of events	p. 362
Concluding remarks	p. 364
References	p. 365
WTO DSU-Enforcement Issues	p. 369
Introduction	p. 370
Objectives of the DSU	p. 372
Mechanisms to ensure implementation of the DSU recommendations	p. 376
Recent WTO decisions dealing with enforcement - the process of burden shifting	p. 382
Proposed solution to the implementation problem	p. 387
References	p. 392
Retaliatory Trade Measures in The WTO Dispute Settlement Understanding: Are There Really Alternatives?	p. 397
Introduction	p. 398
The dispute settlement process	p. 399
Dispute settlement: in practice	p. 400
Goals of dispute settlement	p. 400
Success of dispute settlement	p. 404
Alternatives to retaliatory measures	p. 410
Compensation	p. 411
Suspension of WTO rights or concessions	p. 419
Increased retaliatory rights	p. 421
Concluding analysis	p. 430
References	p. 441
Enforcing WTO Compliance Through Public Opinion and Direct Effect: Two New Proposals to Enhance the Compliance Perspectives for Least Developed WTO Members	p. 443
Introduction	p. 444
The WTO system of compliance enforcement	p. 445
Dispute settlement and compliance enforcement for the WTO's poorest members	p. 447
None of the existing proposals fully remedy the situation for the world's poorest	p. 450
Two additional proposals	p. 454
Limited direct effect	p. 454
The force of public opinion	p. 457
Conclusion	p. 459
References	p. 459
Unintentional Breach in The DSU of the WTO: Consultation in the Shadow of Remedies	p. 463
Introduction	p. 464
A simple model of a treaty	p. 468
The timeline	p. 469
Payoffs and penalties	p. 470
The process of dispute resolution	p. 471
Consultation regarding implementation of a ruling	p. 471
The interpretation of the DSB	p. 476
The request for consultations	p. 477
The negotiation of commitments	p. 478
Conclusions	p. 479
Acknowledgement	p. 480
References	p. 480
Subject Index	p. 483
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