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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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Five Scenarios in Search of a Director. WTO Judges, Their Terms of References, Scope of Competence, Remedies they Proscribe, and the Consequences for the Addressees (Louise Johannesson / Petros C. Mavroidis)

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Five Scenarios in Search of a Director

WTO Judges, Their Terms of References, Scope of Competence, Remedies they Proscribe, and the Consequences for the Addressees

Louise JOHANNESSON1 & Petros C. MAVROIDIS2

Abstract

The WTO has been lauded for its unique dispute settlement system. Its uniqueness lies primarily in that it is the most comprehensive “compulsory third party” adjudication regime in international relations. No other regime of this breadth exists in state to state relations. Without assigning a cause to effect relationship, we point to factors that might be further researched in order to show to what extent they constitute prerequisites for emulating compulsory third party adjudication. Pragmatic judgments constitute a factor to be reckoned with. WTO judges are typically “Geneva crowd”, and they feel comfortable with judgments that do not prejudge too much national sovereignty. The institution is further happy to talk compliance up, using proxies rather than accurate information to this effect.

1. Introductory Remarks

In his monumental study of 1993, Hudec made a very persuasive claim to the effect that the WTO dispute settlement system did not transition to compulsory third party adjudication overnight. The GATT started as a “relational contract” among few, like-minded players. Years of pragmatic judgments that followed, developed a trade ethos of respecting the agreed deeds, while deviations would be tolerated in the short run. De facto endorsing prospective remedies, by not objecting to dozens of recommendations by Panels...

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