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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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Introduction

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Its dispute settlement system is still regularly referred to as the jewel in the WTO’s crown. At the same time, this system has been under review for rather more than half of its existence, and that review has spawned hundreds of proposals for amendment from the WTO membership – although none has been accepted so far.1 Academics and practitioners have added their fair share of criticisms and calls for improvements over the years. It seemed therefore apposite, when reaching the WTO’s 20th anniversary, to perform a “health check” of WTO dispute settlement during a scientific conference: is the system fundamentally in good shape, or are fundamental changes in order?

When designing the conference, the emphasis was indeed on essentials. We did not want to get lost in the myriad of technical issues that easily bedevil any discussion of the WTO’s Dispute Settlement Understanding (DSU), or the case law of WTO panels and the WTO Appellate Body.

After a welcoming address by Prof. Monar, Rector of the College of Europe, Prof. Ehlermann, former member of the WTO Appellate Body, gave the keynote speech. He noted “the appalling lack of equilibrium” between the “legislative branch” and the “judicial branch” of the WTO. He referred to the increasing workload of the WTO dispute settlement system and proposed remedies. With foresight, given the crisis that arose later in the spring of 2016 when the United States blocked the re-nomination of the Korean member of the Appellate Body Prof. Seung...

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