Remedy in WTO Dispute Settlement - Chapter 43 - 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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Remedy in WTO Dispute Settlement

Alan Wolff

A review of WTO dispute settlement has been underway for several years—longer even than the Doha Round. The DSB began this process in 1997 and no consensus has been reached on whether or not changes are needed, and if so, what they should be. The Doha Declaration excludes dispute settlement from what must be included in this Round, although presumably if there were a consensus on modifications that should be made to dispute settlement, these would be included in the ultimate negotiating results.

A substantial number of papers have been tabled by various WTO Members suggesting either further innovations in the DSU’s remedy provisions or giving formal recognition to some existing forms of remedy. The answer to the question of what remedies should be available under the DSU at the end of the current review process depends on the answers given to the following questions:

(i) First and foremost, what will the WTO Members accept?

(ii) How good are the substantive rules with which compliance is to be sought? Are the WTO’s substantive rules clear enough to be enforceable in specific cases? Does a given rule have substantive merit? Should it be enforced?

(iii) What is the quality of the decision-making?

(iv) What are the proper objectives of dispute settlement—deterrence, compliance, compensation?

(v) Is the remedy likely to bring about a desirable result?

(vi) What is the relationship between dispute settlement and trade diplomacy?

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