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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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Financial Payments as a Remedy in WTO Dispute Settlement Proceedings. An Update (Marco Bronckers / Freya Baetens)

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Financial Payments as a Remedy in WTO Dispute Settlement Proceedings

An Update

Marco BRONCKERS1 & Freya BAETENS2

Abstract

Remedies in international law present an intriguing challenge: what happens if a sovereign state refuses to comply with its obligations, even after an international adjudicatory body has ruled in its disfavor? The absence of compulsory enforcement arguably means that international law as a system lacks binding effect. The solution offered under the WTO system has been to authorize the prevailing Member in the settlement of a dispute to retaliate, if and when the respondent Member fails to implement a panel or Appellate Body ruling. Such retaliation can take the form of additional restrictions on imports of goods or services, or suspensions of intellectual property rights. Our paper examines whether fairer and more effective means of ensuring compliance could be inserted into the WTO system. First, existing remedy systems are outlined, comparing general public international law with the current WTO system, after which the EU compliance regime is analyzed. This is followed by an examination of the advantages of introducing the remedy of financial payments into WTO dispute settlement as well as a refutation of potential objections. The main elements of the subsequent proposal relate to the calculation, term, retro-activity and beneficiary of financial payments as a remedy. This version of our analysis updates a paper we published in May 2013. ← 67 | 68 →

I. Introduction

Remedies in international...

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