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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 (Jacob Grierson)

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A Comment

Jacob GRIERSON1

When you invited me I knew nothing at all about WTO dispute settlement. I now know a lot more. It’s a fascinating topic, so thank you very much.

Why didn’t I know anything about WTO dispute settlement? Because I didn’t take your class when I was here at the College − huge mistake − and so, instead of becoming a trade lawyer I became an international arbitration practitioner. I act as counsel and also as arbitrator in both commercial and investment disputes, and just to be clear about what is meant by an investment arbitration and a commercial arbitration: an investment arbitration is one which is either brought pursuant to a bilateral investment treaty or a multinational investment treaty such as the Energy Charter Treaty for example, or it can be one which is brought under a contract, typically an oil concession for example, in which the parties have agreed to submit their dispute to ICSID, which, as Professor Baetens explained, is a special body for deciding some of these disputes. Most of the bilateral investment treaties and the multinational ones as well give the option of going either to ICSID or to one or two or sometimes even three other institutions. ICSID is particular, as it is a totally self-contained system which doesn’t require or indeed allow you to go to national courts. The New York Convention doesn’t come into play, and that is exactly why Professor Baetens...

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