This is the first book that critically examines the reform of the Appellate Body (AB) of the World Trade Organization (WTO) in light of the current crisis resulting from the U.S. blocking of the appointment of its members. The reform of the AB is critical, as the appointment crisis could lead to the demise of “the jewel in the crown,” which may even cause the dismantling of the WTO as a whole. This book covers various aspects of the crisis and its reform. Specifically, as the crisis cannot be fully understood without reviewing the role of the AB from the broader perspectives of the other functions of the WTO, the book examines the reform of the AB from the broader perspectives of the WTO governance. Additional focus is on the reform of the AB in relation to its specific functions. Available options are provided to address the AB crisis, as well as discussion of wider implications beyond the WTO. Contributed by world-renowned academics, experts, and practitioners in the field of international economic law, this volume provides a comprehensive analysis of the AB crisis and its solutions.
Global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and a revised conception of sovereignty in an increasingly pluralistic global legal era. However, the legitimacy of the resulting 'standards-enriched' international law remains open to question. International courts and tribunals should not be the only fora in which these standards are elaborated, and many challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality stricto sensu in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law's legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.
Is the World Trade Organization (WTO) dispute settlement system (DSS) effective? How exactly is the effectiveness of this adjudicative system to be defined and measured? Is its effectiveness all about compliance? If not, what goals, beyond compliance, are the WTO DSS expected to achieve? Building on a theoretical model derived from the social sciences, this book lays down the analytical framework required to answer these questions, while crafting a revealing insider's account of the WTO DSS-one of the most important and debated sites of the evolving international judiciary. Drawing on interviews with WTO adjudicators, WTO Secretariat staff, ambassadors, trade delegates, and trade lawyers, the book offers an elaborate analysis of the various goals steering the DSS's work, the diverse roles it plays, the challenges it confronts, and the outcomes it produces. Through this insider look at the WTO DSS and detailed examination of landmark trade disputes, the book uncovers the oft-hidden dynamics of WTO adjudication and provides fresh perspective on the DSS's operation and the undercurrents affecting its effectiveness. Given the pivotal role the WTO DSS has assumed in the multilateral trading regime since its inception in 1995 and the systemic pressures it has recently come to face, this book makes an important contribution towards understanding and measuring the benefits (as well as the costs) this adjudicative body generates, while providing valuable insights into current debates on its reform.
Bringing together articles by some of the leading policy-makers, including previous WTO Director-Generals, practitioners, scholars of international trade law, government officials, international civil servants, Members of the WTO Appellate Body, and judges from a number of international tribunals, this volume assesses the dispute settlement system during the first ten years of the World Trade Organization. It examines the relationship and balance between political governance and dispute settlement; the functioning of the dispute settlement procedures and various reform proposals; the contribution of the Appellate Body to the development of international trade law; and treaty interpretation in a number of international dispute settlement fora such as the WTO, the International Court of Justice, the European Court of Justice, and the Tribunal for the Law of the Sea. The book has its origins in a series of events commemorating the tenth anniversary of the creation of the WTO dispute settlement system and the Appellate Body.
During the Uruguay Round of negotiations that led to the creation of the World Trade Organization (WTO), the United States advocated and supported the creation of the Appellate Body and a formalized dispute settlement mechanism. In the following years, the United States changed its position and became increasingly critical of the seven member standing Appellate Body. Although other WTO members shared some of the same concerns, it was the United States that blocked the appointments and reappointments of the Appellate Body members until it became impossible for the Appeals mechanism to function. The United States is of the view that the Appellate Body has exceeded its authority by engaging in "judicial activism." This doctoral dissertation looks carefully at the criticism of the United States particularly (although not exclusively) in a series of anti-dumping cases addressing the U.S. use of zeroing methodology. It discusses the unique U.S. vision on the standard of review that has its origins in its domestic administrative law and doctrine of judicial deference. Although the zeroing reports are not the only cases where the United States criticizes the Appellate Body, they were a particular flash point for the relationship of the United States with the Appellate Body. The dissertation further examines the U.S. behavior towards the selection of the Appellate Body members in light of the dynamics of domestic politics and the nature of political influences in the appointment process. It concludes that the Appellate Body's interpretive methodology is aligned with the customary rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties and applied in the jurisprudence of the International Court of Justice. It further concludes that the Appellate Body inherits an inevitable fragility when it conflicts with attributes of sovereignty. The institution is bound to fail on occasions of political interference with its judicial independence. Given that the consensus decision-making is integral to the structure of the Dispute Settlement Understanding (DSU) as a means to constrain the authority of the tribunal at this time any reform of the dispute settlement system will not be a long term or meaningful. Using the anti-fragility concept developed by Nassim Nicholas Taleb, this dissertation asserts that although the Appellate Body may be fragile, the jurisprudence it developed over more than two decades of its existence is "anti-fragile" and will continue to influence a rule based multilateral trading system.
The Oxford Handbook of International Trade Law offers extensive analysis and critique on the principles of modern international trade law, considering the systems of trade between nations in their economic and institutional contexts.
This book provides readers with a unique opportunity to explore how the international economic legal order (IELO) may look in a post-WTO world. The substance of this book presupposes (whether correct or not) that the WTO either: (a) Stagnates into the foreseeable future (Doha withers, no new Rounds, at best minor amendments, little new jurisprudence, effective collapse of the DSB); or (b) Falls apart completely. While neither is desirable, the book underlines that it must be conceded that neither is inconceivable. The collapse of the Soviet Union tells us that anything is possible (in 1986 no one foresaw the end of the Cold War - clearly it was a much more significant event than would be the case for the demise of the WTO and the current international economic legal order (IELO)). Similarly, just a year or two before Brexit or the election of US President Donald Trump, no one foresaw those two eventualities. Consequently, a worst-case scenario for the future of the WTO cannot be ignored – rather, it must be explored, as has been done in this book. Indeed, despite most IEL academics’ commitment to multilateralism and specifically to a vibrant and dynamic WTO, academics in the field are now beginning to seriously discuss what a post-WTO world could look like (and it was the project behind this book that first launched those discussions). Accordingly, this examination of the post-WTO world will be of great value to practitioners, governmental and international officials and scholars in the IELO. This is particularly so in an era of increasingly rapid change, during which legal scholarship must also address the future if it wants to contribute creative solutions to the resolution and management of the many serious contemporary problems facing our field.
Intellectual Property law (IP) - particularly in relation to international trade regimes - is increasingly finding itself challenged by rapid developments in the technological and global economic landscapes. In its attempt to maintain a responsive legislative system that is interacting successfully with global trade rules, IP is having to respond to an increasing number of actors on an international level. This book examines the problems associated with this undertaking as well as suggesting possible revisions to the TRIPS agreement that would make it more relevant to the environment in which today's IP mechanisms are operating. The overall aim is to find an adequate response to the 'IP balance dilemma'. The theme is pursued throughout various topics, including a look at what this means in relation to economy in a country like China, and also considering how IP is increasingly having to reconcile itself with human rights issues.
The WTO dispute settlement process has evolved in recent years into one of the most successful, yet complex, systems of international arbitration. In this extensively revised new edition of Palmeter, Mavroidis, and Meagher's authoritative book on WTO dispute settlement, the authors provide a comprehensive overview of each step of the WTO dispute settlement process, examining both the history of the system, the governing legal rules, and the more informal procedural aspects of the process in detail. This edition takes into account the jurisprudence of panels and the Appellate Body up to the end of 2020 and includes an analysis of the current crisis in the WTO Appellate Body. This volume is an essential tool for practitioners, diplomats, government lawyers, and students of WTO law and should equally be of interest to students of other forms of international arbitration.
Environmental Law in Arab States offers a comprehensive and authoritative account of the guiding principles and rules relating to environmental protection in the Arab region. Taking an international and comparative approach, the book introduces readers to the latest developments of environmental law across the Arab region through applicable legislation, green finance, and climate technologies The impact of these is assessed in each of the major areas of environmental regulation, air pollution, water pollution, biodiversity, conservation of nature and cultural heritage, infrastructure development, and Islamic ecology. Consideration is given to participatory and bottom-up legal strategies DS focusing on transparency, accountability, gender justice, and other human rights safeguards DS that are needed to achieve greater coherence and coordination in the implementation and enforcement of environmental regulation across the region. The book closes by providing legal assessments and reflections on how Arab countries can, through clear and comprehensive legislation, advance existing national strategies and visions on trade and investment, green growth, Islamic green finance, circular economy, blue economy, and low carbon future amongst others.
In this thought-provoking book, Michelle Q. Zang critically examines the practices and outcomes of international economic adjudication through an exploration of a selected group of specialized judicial actors. She draws on an in-depth review of decisions delivered by bilateral, regional and multilateral judiciaries in order to respond to questions surrounding the proliferation and fragmentation of international adjudication, including the concerns and challenges this raises.
Volume 12 of the EYIEL focuses on “The Future of Dispute Settlement in International Economic Law”. While new forms of dispute settlement are emerging, others are in deep crisis. The volume starts off with reflections on Dispute Settlement and the World Trade Organisation, most prominently the crisis of the Appellate Body, but also addressing international intellectual property law and the African Continental Free Trade Area. This is followed by a section on Dispute Settlement and Investment Protection/International Investment Law, which includes articles on the summary dismissal of claims, the margin of appreciation doctrine, the use of conciliation to settle sovereign debt disputes, and contract-based arbitration in light of Achmea and Hagia Sophia at ICSID. Further contributions consider the emerging role of commercial courts, the dejudicialization of international economic law, dispute settlement in the UK-EU Withdrawal Agreement, reference mechanisms in dispute resolution clauses, and UNCLOS.