A Review of Major WTO Jurisprudence - Chapter 29 - WTO: Governance, Dispute Settlement & Developing Countries

Originally from: The WTO: Governance, Dispute Settlement & Developing Countries

The WTO: Governance, Dispute Settlement & Developing Countries-Electronic

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A Review of Major WTO Jurisprudence

Mitsuo Matsushita

The WTO celebrated its tenth anniversary in 2005. The WTO was created as a result of the Uruguay Round of trade negotiations, which was the eighth round under the GATT 1947. Although ten years is not a long period, it nevertheless constitutes a short history and it is time to reflect on the WTO’s accomplishment in establishing jurisprudence.

The WTO has encountered difficulties with negotiations, such as the failure of the Ministerial Conferences in Seattle (1999) and Cancun (2003). At this time, it is difficult to predict the outcome of the DDA. Although the Hong Kong Ministerial Conference held in 2005 adopted a resolution to continue international negotiations on agriculture, market access of nonagricultural products, trade rules such as antidumping and trade in services, the resolution constitutes a relatively small package. At the same time, FTAs and RTAs have proliferated and presented challenges to the multilateral trading system embodied in the WTO.

In sharp contrast to this, the WTO dispute settlement system has achieved a high degree of success. The WTO dispute settlement system has dealt with more than 350 cases since its establishment and, in more than 100 cases, panels and the Appellate Body rendered their decisions. Although there are a handful of cases in which there has been difficulty in implementing WTO recommendations,1 in the majority of cases, DSB recommendations have been successfully implemented. The WTO dispute settlement system has established itself as probably the most successful international tribunal not only in the area of international trade, but with respect to international disputes generally.

In the following passages, two topics will be discussed. In Section I, there will be some discussion of the advantages of the WTO dispute settlement system, for example, its contribution to the establishment of a rules-oriented international trading system and its advantages for WTO Members, especially for developing country Members in resolving disputes with more powerful trade partners.

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