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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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A Comment (Lothar Ehring)

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A Comment

Lothar EHRING1

I will come back to the origin of the dispute settlement system at the end, but I will start in the present and make a few remarks about certain features of the dispute settlement system today. We face today a dispute settlement system of the WTO that is highly effective, but lives in an era of dysfunctional negotiations at the WTO, thus creating an imbalance of powers and a deficiency in terms of adaptations of the law, also in response to judicial rulings, where considered necessary. Claus Ehlermann has just made the point that this is an important problem, the point is being made in many places, he and I even jointly made it in one publication. Nevertheless, this does not mean that it is not worth calling into question the validity of this proposition. One can easily explain politically that the imbalance and lack of legislative response are a problem. But whether it is really a danger in the long term for the WTO, I think, is a question that needs to be measured against the yard-stick of the reality today, where we have a very well-functioning WTO dispute settlement system which for unfortunately already many years lives next to a negotiation forum in the WTO that is inoperable and certainly ineffective, when it comes to results.

This admittedly creates problems of an institutional nature for instance inside the WTO Secretariat where the work is unevenly...

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