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.
A Comment (Christian Tietje)
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Jacques Bourgeois invited us to strongly criticize the papers we were asked to comment on. Hence, I want to add some criticism to that of Bernard Hoekman. My comment will be more from a lawyer’s perspective, and it concerns the general concept of compliance with DSB decisions.
First of all, the paper by Bronckers and Baetens starts off with an assumption that there is a general compliance problem in international law and also in WTO law. I am skeptical. I do not see that much of a compliance problem. With regard to international law in general, I strongly believe in what has been said by Louis Henkins, and you probably all know this quote: “almost all nations observe almost all principles of international law, almost all of the time”.2 This is still correct and true and it is also the reality in the WTO context. Charzow Factory,3 which is of course the legal starting point for the considerations of Marco, is not normality, but rather, a pathological situation. In order to discuss the compliance structure of WTO law, however, it is necessary to analyze normality, not some pathological situation. Moreover, there is not empirical evidence from public international law proving that any financial remedy will make compliance systems better.
My thesis therefore would be that there are always multiple considerations and incentives concerning compliance by States.4 It is thus not only financial remedies....
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