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 (Pieter Jan Kuijper)
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Pieter Jan KUIJPER1
Colin Brown’s paper has described to us the very comprehensive dispute settlement system for trade disputes that will be introduced with the CETA. This regional dispute settlement system raises two systemic questions. First, what is the relation with the WTO and its dispute settlement system and, more particularly is it a hierarchical relationship? Secondly what is the relationship with the ISDS system in the same treaty and more particularly how to distinguish clearly between trade rights and investment rights?
To begin with the first question, there is no doubt that FTA’s like the one between the EU and Canada need to be in conformity with the requirements of Article XXIV GATT and Article V GATS, but there seem to be sufficient reasons for assuming that this is the case. On the other hand there is still some doubt how far the powers of the parties to an FTA go, when contracting out of the WTO Agreements, as long as the requirements of those articles have been fulfilled. In other words, does the hierarchy between WTO and FTA’s as created by Article XXIV and V go further than the terms of those articles? The Appellate Body reports in Turkey – Textiles (DS 34) and in Peru – Agricultural Products (DS 457) seem to answer this question in the affirmative. Especially the latter case, concerning the FTA between Peru and Guatemala, the AB does so because the Peruvian system akin...
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