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WTO Dispute Settlement: a Check-up

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Edited By Jacques H.J. Bourgeois, Marco Bronckers and Reinhard Quick

The dispute settlement system of the World Trade Organisation has been referred to as the jewel in the crown of the WTO. Reviewing more than
twenty years of the system’s operation, this volume takes stock by providing an in-depth analysis of key issues that have emerged. The book collects and updates papers by a group of eminent experts that were presented at an international conference at the College of Europe in Bruges. The fundamental question of whether the system is in good shape or whether changes are necessary is addressed through five themes.

Firstly, the book looks at the interpretive function of the dispute settlement system and questions whether rulings are capable of "gap-filling". Secondly, under the heading ‘Jurisdiction and Applicable Law’ we cover the thorny issue of how public international law can be integrated into the dispute resolution system. Thirdly, regarding problems associated with implementation, we ask whether the system ensures satisfactory compliance with its rules and rulings or whether financial remedies need to be added. Furthermore, through themes four and five we compare the WTO dispute settlement system with the dispute settlement system contained in the Free Trade Agreements, as well as the investor-state arbitration system (ISDS). We investigate how these two different systems can influence each other and learn from one another. With respect to the reform debate on ISDS, for example, the question was raised whether the WTO dispute settlement system could be considered as a model for such a reform.

This review comes to the conclusion that the system is functioning, if not perfectly, at least reasonably well. Where problems are identified, solutions are suggested to improve the system.

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The Origins of WTO Dispute Settlement (Dirk De Bièvre)

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The Origins of WTO Dispute Settlement

Dirk DE BIÈVRE1

1. Existing literature: on effects, rather than origins of WTO dispute settlement

The creation of the WTO dispute settlement system as a result of the Uruguay Round package has widely – and rightfully so – been regarded as an important development in international politics, international economic relations, and the evolution of multilateral institutions. Through the establishment World Trade Organization in 1995, the multilateral trade regime evolved from a typical case of intergovernmental international cooperation where states retain near-full control over decision to an institution where enforcement powers are partially delegated to third party bodies. During the preceding half century, dating back to the entry into force of the General Agreement on Tariffs and Trade (GATT) in 1948, the structure of reciprocal concessions in multilateral trade rounds had been the cornerstone of the multilateral trade regime. In the current international trade regime under the WTO however, reciprocal trade negotiations are not the only means through which WTO members can deal with existing barriers to trade among them. Members decided to strengthen existing mechanisms for enforcement of commonly agreed upon rules, replacing the GATT’s model of political-diplomatic dispute settlement with a quasi-judicial model of dispute settlement characterized by automatic right to review, the formulation of legally binding obligations, a standing tribunal of justices, and the authority to authorize sanctions and even cross-retaliation against recalcitrant members (Goldstein et al. 2000; Stone Sweet 1997 and 1999; Zangl...

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