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The WTO: Governance, Dispute Settlement & Developing Countries

About the Book:
This volume brings together essays by world-renowned leaders in the field of international trade examining the operation of the WTO and its dispute settlement system. The experts who have contributed to this book include policymakers, scholars, lawyers and diplomats. Two major areas of inquiry are undertaken. The first half of this volume examines the governance and operation of the WTO and the international trading system. It pays particular attention to issues that affect developing country members of the WTO. The second half of this volume contains a detailed examination of the performance, operation, and challenges of the WTO's dispute settlement system.

This book is an outgrowth of a conference held at Columbia University in New York in the spring of 2006. The conference was the last of a series of five regional gatherings held around the world to commemorate the 10th anniversary of the WTO and its dispute settlement system. This volume includes essays that shed further light on some of the themes raised in those discussions, as well as edited transcripts from that conference.

Table of Contents

Foreword

Acknowledgments

Introduction and Overview

Abbreviations

PART I UNDERSTANDING THE WORLD TRADE ORGANIZATION TODAY AND ITS HISTORY

SECTION I 
The World Trade Organization: The Challenges Ahead

1. The WTO Doha Development Agenda: Working for a Fairer Global Trading System 
- Pascal Lamy

2. Doha: Our Generation’s Opportunity to Promote Economic Growth and Development 
- Susan Schwab

3. The Politics of the World Trade Organization in Its Second Decade 
- Peter Mandelson

4. Managing the Future Challenges Facing the World Trade Organization: A European Perspective 
- Christine Lagarde

SECTION II 
The Uruguay Round and the Doha Development Agenda: What Have We Achieved?

5. Leadership and Vision: Some Lessons from the Uruguay Round 
- Peter Sutherland

6. The World Trade Organization’s Biggest Problem at Ten: Surviving the Doha Round 
- Ernesto Zedillo

7. The Doha Round: Salvageable? Or a Lost Cause?
- Clayton Yeutter

8. The Uruguay Round: Its Lessons for Doha 
- Jagdish Bhagwat

9. The Doha Round: Has It Now Expired? 
- Albert Fishlow

10. Why the Prospects for a Doha Deal Are Not Bleak 
- Arvind Panagariya

11. OPENING DINNER ROUNDTABLE A World Leaders Forum Event  The Uruguay Round and the Doha Development; Agenda: What Have We Achieved? 
- Lee C. Bollinger, Merit E. Janow, Carla Hills, Clayton Yeutter, Peter Sutherland, Jagdish Bhagwati

SECTION III 
The World Trade Organization and Developing Countries

12. The World Trade Organization and Developing Countries: An Indonesian Perspective 
- Mari Elka Pangestu

13. How Can the World Trade Organization and the Multilateral Trading System Support the Development Goals of Low income Countries? 
- Ngozi Okonjo-Iweala

14. A Progressive Tariff Reduction Scheme 
- Joseph Stiglitz and Andrew Charlton

15. Developing Countries and the World Trade Organization: What Are the Issues?
- Patrick Low

SECTION IV 
Decision-making in the World Trade Organization: An Analysis of a Member-driven Organization

16. Decision-making in the World Trade Organization 
- Sun Zhenyu

17. Great Expectations, Hard Times: Dickensian Decision-making at the World Trade Organization? 
- Stuart Harbinson

18. PANEL DISCUSSION Decision-making at the World Trade Organization: An Analysis of a Member-driven Organization 
- Merit E. Janow, Stuart Harbinson, Hyun-Chong Kim, Amina Mohamed, Mary Robinson, Sun Zhenyu

SECTION V 
Reflections on the World Trade Organization in the Context of Economic Globalization

19. Dangers to the Trading System: The Real, The Hyped, and The Possibly Serendipitous 
- Paul Blustein.

20. WTO Negotiations Under the Impact of Globalization: The Opportunity and Challenge of Multilateralism inthe Twenty-first Century 
- Seiichi Kondo

21. PANEL DISCUSSION Reflections on the World Trade Organization in the Context of EconomicGlobalization 
- Grant Aldonas, Martin Wolf, Seiichi Kondo, Paul Blustein, Keith Rockwell, John Jackson

PART II THE DISPUTE SETTLEMENT SYSTEM

SECTION VI 
Examining the Dispute Settlement System: How Has It Performed?

22. The First Years of the Appellate Body and the WTO Dispute Settlement System: A Historical Perspective 
- Julio Lacarte Muro

23. The Scope of WTO Law Enforced Through WTO Dispute Settlement Procedure 
- Frieder Roessler

24. Legal Eagles? The WTO Appellate Body’s First Ten Years 
- Petros Mavroidis

25. Features of the Appellate Body That Have Defined Its Performance 
- Werner Zdouc

26. PANEL DISCUSSION Examining the Dispute Settlement System: How Has It Performed? 
- Yasuhei Taniguchi, John Jackson, Julio Lacarte Muro, Petros Mavroidis, George Bermann, Frieder Roessler, Werner Zdouc

SECTION VII 
Lessons from Experience: Operation of the Panel Process and Appellate Review

27. Expediting the Panel Process in WTO Dispute Settlement 
- William Davey

28. The Strengths, Weaknesses, and Future of WTO Appellate Review 
- Valerie Hughes

29. A Review of Major WTO Jurisprudence 
- Mitsuo Matsushita

30. Enhancing the Operation of the WTO Panel Process and Appellate Review: Lessons from Experience and a Focus on Transparency 
- Andrew Stoler

31. The Burden of Proof in WTO Dispute Settlemen 
- David Unterhalter

32. Understanding the Concept of Prima Facie Proof in WTO Dispute Settlement 
- Yasuhei Taniguchi

33. PANEL DISCUSSION Lessons from Experience: Operation of the Panel Process and Appellate Review 
- Luiz O. Baptista, William Davey, Valerie Hughes, Mitsuo Matsushita, Andrew Stoler, John Weekes

SECTION VIII 
WTO Case Law in the International Law Context

34. WTO Law and the "Fragmentation" of International Law: Specificity, Integration, Conflicts 
- Giorgio Sacerdoti

35. The Factors Driving and Constraining the Incorporation of International Law in WTO Adjudication 
- Jose Alvarez

36. The Use and Abuse of International Law in WTO Trade/Environment Litigation 
- Robert Howse

37. An Outsider’s Look at the WTO Appellate Body 
- Patricia Wald

38. Does the World Trade Organization Prohibit Retorsions and Reprisals? Legitimate "Contracting Out" or "Clinical Isolation" Again? 
- Pieter-Jan Kuijper

39. PANEL DISCUSSION WTO Case Law in an International Law Context 
- Georges Abi-Saab, Jose Alvarez, Florentino Feliciano, Martti Koskenniemi, Pieter-Jan Kuijper, Patricia Wald

SECTION IX 
Considering Remedies

40. Remedies in the World Trade Organization: An Economic Perspective 
- Kyle Bagwell

41. A Comment on Compliance with WTO Dispute Settlement Decisions 
- Gary Horlick and Judith Coleman

42. Compliance by WTO Members with Adverse WTO Dispute Settlement Rulings 
- Bruce Wilson.

43. Remedy in WTO Dispute Settlement 
- Alan Wolff

44. PANEL DISCUSSION Considering Remedies 
- Kyle Bagwell, Gary Horlick, Robert Lawrence, Bruce Wilson, Alan Wolff

SECTION X 
The WTO Dispute Settlement System in the Next Ten Years

45. The WTO Dispute Settlement System in the Next Ten Years 
- David Palmeter

46. Mapping the Law of WTO Accession 
- Steve Charnovitz

47. PANEL DISCUSSION The Dispute Settlement System in the Next Ten Years 
- Julio Lacarte Muro, Jane Bradley, Steve Charnovitz, Robert Howse, David Palmeter.

SECTION XI 
Implementation of WTO Rulings: The Role of the Courts and Legislatures in the United States and Other Jurisdictions

48. US Implementation of WTO Decisions 
  - Sharyn O’Halloran

49. Multi-level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System
- Ernst-Ulrich Petersmann

50. Reconciling the International and the Domestic: The Reasonable Period of Time under Article 21.3 of the DSU 
 - Robin Hansen and Donald McRae.

51. PANEL DISCUSSION Implementation of WTO Rulings: The Role of Courts and Legislatures in the United States and Other Jurisdictions 
- Giorgio Sacerdoti, Thomas Aquilino, Jr, George Bermann, Donald McRae, Sharyn O’Halloran,Ernst-Ulrich Jetersmann.

Biographical Notes

Table of Cases

Index

About the Editors:
Merit E. Janow was a member of the WTO Appellate Body from 2003 to 2008 and is a Professor of International Economic Law and International Affairs at Columbia University. She is a leading expert in international trade and antitrust law and policy. She has extensive experience in academia, government, and business, with an early specialization in the Asia-Pacific region. For the past thirteen years, Merit E. Janow has been a Professor at Columbia University's School of International and Public Affairs (SIPA) and Columbia Law School.

Victoria Donaldson is a Counselor at the WTO Appellate Body Secretariat, where she has worked since 1999. From 1996 to 1999, she practiced law with the Brussels office of Cleary, Gottlieb, Steen and Hamilton.

Alan Yanovich is a Counselor at the WTO Appellate Body Secretariat, where he has worked since 2001. He was a legal adviser at the General Secretariat of the Andean Community from 1997 to 2001.

About the Contributors:
Jose Alvarez is a Hamilton Fish Professor of International Law & Diplomacy, Columbia University School of Law.
Kyle Bagwell is Kelvin J. Lancaster Professor of Theory in the Department of Economics and Professor of Finance and Economics in the School of Business at Columbia University.
Jagdish Bhagwati is the University Professor of Economics and Law at Columbia University and Senior Fellow in International Economics at the Council on Foreign Relations.
Paul Blustein is Journalist in Residence at the Brookings Institution and staff writer at The Washington Post.
Lee C. Bollinger is the President at Columbia University.
Andrew Charlton is a Research Economist at the Centre for Economist Performance at the London School of Economics.
Steve Charnovitz is an Associate Professor at George Washington University School of Law.
Judith Coleman is an Attorney in the Washington, DC of WilmerHale.
William Davey is Edwin M. Adams Professor of Law at the University of Illinois College of Law.
Albert Fishlow is Professor of International and Public Affairs at Columbia University, Director of the Center for Brazilian Studies and Director of the institute for Latin American Studies at Columbia.
Robin Hansen coordinates the International Law Program at the University of Ottawa's Faculty of Law. 
Stuart Harbinson is a special Advisor, Office of the Director-General at the WTO.
Gary Horlick a Partner at WilmerHale.
Robert Howse is Alene and Allan F Smith Professor of Law at the University of Michigan Law School.
Valerie Hughes is Assistant Deputy Minister Counsel, Law Branch, Finance for the Government of Canada.
Seiichi Kondo is Ambassador and Permanent Delegate of Japan to UNESCO.
Pieter-Jan Kuijper is Director/Principal Legal Advisor for the European Commission.
Julio Lacarte Muró served at the WTO Appellate Body from 1995-2001.
Pascal Lamy is Director-General of WTO.
Christine Lagarde Minister of the Economy of France and former Managing Partner at Baker & McKenzie.
Patrick Low is Chief Economist (Director of Economic Research and Statistics) at the World Trade Organization.
Peter Mandelson is the EU Commisioner for Trade.
Mitsuo Matsushita of Japan served at the WTO Appellate Body from 1995-2000.
Petros Mavroidis is Edwin B. Parker Professor of Foreign & Comparative Law at Columbia Law School and Professor of Law at the University of Neuchatel.
Donald McRae is the Hyman Soloway Chair in Business and Trade Law and is a former Dean of the Common Law Section at the University of Ottawa.
Sharyn O’Halloran is the George Blumenthal Professor of Politics in the Department of Political Science and the School of International and Public Affairs at Columbia University.
Ngozi Okonjo-Iweala is a distinguished fellow at the Brookings Institution. Dr. Okonjo-Iweala is former Minister of Foreign Affairs and Minister of Finance of the Federal Republic of Nigeria.
David Palmeter is Senoir Cousel at Sidley Austin LLP.
Arvind Panagariya the Jagdish Bhagwati Professor of Indian Political Economy and Professor of Economics at Columbia University.
Mari Elka Pangestu Minister of Trade in Indonesia.
Ernst-Ulrich Petersmann Professor of International and European Law at the European University Institute (EUI) in Florence, Italy, and Joint Chair at the EUI's Robert Shuman Centre for Advanced Studies.
Frieder Roessler is Executive Director of the Advisory Centre on WTO Law, based in Geneva, Switzerland.
Giorgio Sacerdoti has been a member of the WTO Appellate Body since 2001 and is a Professor of International Law and European Law at Bocconi University, Milian, Italy, since 1986.
Susan Schwab is the US Trade Representative.
Joseph Stiglitz is University Professor at Columbia University and Executive Director and Co-Founder of the Initiative for Policy Dialogue.
Andrew Stoler the Executive Director of the Institute for International Business, Economics and Law and Adjunct Professor of International Trade at the University of Adelaide.
Sun Zhenyu is Ambassador and Permanent Representative of the People's Republic of China to the WTO.
Peter Sutherland is Chairman of BP L.L.C. since 1997.
Yasuhei Taniguchi has been a member of the Appellate Body since 2000.
David Unterhalter has been a member of the Appellate Body since 2006.
Patricia Wald has led a legal career that has made her one of the pre-eminent figures in the legal profession in the United States as well as a champion of legal reform across the globe.
Bruce Wilson Director of Legal Affairs Division of the WTO Secretariat.
Alan Wolff is a member of Dewey Ballantine's Management Committee and Managing Partner of the Firm's Washington, DC office.
Clayton Yeutter is Senior Advisor for International Trade at Hogan & Hartson in Washington DC.
Werner Zdouc has been director of the WTO Appellate Body Secretariat since 2006.
Ernesto Zedillo is Director of the Yale Center for study of Globalization and a Professor in the field of International Economics and Politics at Yale University.

About the Panel Discussants:
Georges Abi-Saab has been a member of the Appellate Body since 2000.
Grant Aldonas is William M. Scholl Chair in International Business at the Center for Strategic and International Studies and formerly as the US Undersecretary for International Trade. 
Thomas Aquilino, Jr. is the Senior Judge at the US Court of International Trade (USCIT).
Luiz O. Baptista has been a member of the WTO Appellate Body since 2001 and is Professor of International Trade Law at the University of Sao Paulo Law School.
George Bermann is Jean Monnet Professor of European Law and Gellhorn Professor of Law at Columbia Law School.
Jane Bradley is Adjunct Professor and Deputy Director of the Institute of International Economic Law at Georgetown University School of Law. 
Florentino Feliciano served on the WTO Appellate Body from 1995-2000. He served as Senior Associate Justice of the Supreme Court of the Philippines and Vice-Chairman of the Academic Council of the Institute of International Business Law and Practice of the International Chamber of Commerce in Paris. 
Carla A. Hills is Chairman and Cheif Executive Officer of Hills & Company, International Consultants, Ambassador Hills previously served as US Trade Representative (1989-1993).
John H. Jackson joined the Georgetown Law Center faculty after a distinguished career at Hessel E. Yntema Professor of Law at the University of Michigan.
Hyun-Chong Kim is Minister of Trade for the Republic of South Korea.
Martti Koskenniemi is Professor of Law at the Academy of Finland and the University of Helsinki and Global Professor of Law at New York University.
Robert Lawrence is the Albert L. Williams Professor of Trade and Investment at the John F. Kennedy School of Government at Harvard University. 
Amina Chawahir Mohamed is the head of the Europe and Commonwealth Division at the Ministry of Foreign Affairs of Kenya. She was previously the Ambassador and Permanent Representative of Kenya to the WTO, the UN, and other international organizations in Geneva. 
Mary Robinson is Professor in the Practice of Public Affairs at Columbia University, Executive Director of Realizing Rights: The Ethical Globalization Iniative. She was the first woman President of Ireland (1990-1997) and more recently the UN High Commisioner for Human Rights (1997-2002).
Keith Rockwell is Director of Information and Media Relations Division and Spokesman for the W.T.O. 
John Weekes Senior Policy Advisor at Sidley Austin LLP. From 1995 to 1999 he was Canada's Ambassador to the WTO, and in 1998 he served as Chair of the WTO General Counsil.
Martin Wolf is Associate Editor and Chief Economics Commentator at the Financial Times.