This article argues that the use of principles in WTO dispute resolution is both necessary and desirable. However, Panels and the Appellate Body (WTO Tribunals) have often ignored principles or not clearly identified the legal basis for their use. This article establishes a framework for the use of principles (in particular principles of WTO law, principles of customary international law, and general principles of law) in WTO dispute settlement. Broadly, WTO Tribunals can use principles drawn from these categories to interpret WTO provisions, based on Article 3.2 of the DSU, and Articles 31 and 32 of the VCLT. This follows most directly from a teleological approach to interpretation, but principles also feature under subjective and textual approaches to interpretation. WTO Tribunals may also use certain principles in a non-interpretative manner. Indeed, this may be necessary, particularly to address procedural issues. Precisely how a principle may be used depends on its type, content and status. , Oxford University Press.
{"title":"The Legal Basis for Using Principles in WTO Disputes","authors":"A. Mitchell","doi":"10.1093/jiel/jgm037","DOIUrl":"https://doi.org/10.1093/jiel/jgm037","url":null,"abstract":"This article argues that the use of principles in WTO dispute resolution is both necessary and desirable. However, Panels and the Appellate Body (WTO Tribunals) have often ignored principles or not clearly identified the legal basis for their use. This article establishes a framework for the use of principles (in particular principles of WTO law, principles of customary international law, and general principles of law) in WTO dispute settlement. Broadly, WTO Tribunals can use principles drawn from these categories to interpret WTO provisions, based on Article 3.2 of the DSU, and Articles 31 and 32 of the VCLT. This follows most directly from a teleological approach to interpretation, but principles also feature under subjective and textual approaches to interpretation. WTO Tribunals may also use certain principles in a non-interpretative manner. Indeed, this may be necessary, particularly to address procedural issues. Precisely how a principle may be used depends on its type, content and status. , Oxford University Press.","PeriodicalId":223925,"journal":{"name":"OUP: Journal of International Economic Law","volume":"807 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114051477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past decade, government trade and finance ministries have increasingly turned toward negotiating bilateral and regional trading arrangements, and away from negotiations in multilateral forums like the WTO. There are several reasons for this shift, including changes in the global political environment and negotiating obstacles encountered by the multinational business community at the multilateral level. This shift appears to be an embedded phenomenon. Positive and negative aspects of preferential trading arrangements (PTAs) are in evidence. Trade creation-trade diversion economic analysis suggests the results may be net global welfare enhancing, although such analysis does not readily assess distributional effects. The global economy is enjoying a period of sustained and widely distributed economic growth, suggesting that the PTA phenomenon is not an immediate economic threat. On the negative side, the PTAs lead to administrative complexity, and may be somewhat destabilizing as businesses are encouraged to relocate. Some countries may suffer if left out, but this risk is ameliorated by the wide availability of potential negotiating partners. The PTA negotiating environment strongly favors powerful economic actors like the United States and European Union, which are largely dictating terms to developing (and developed) countries. Developing countries, particularly the less economically powerful, are losing autonomous decision-making authority. The consequences of this are difficult to quantify, and may raise questions better attuned to moral philosophers than economists. The WTO continues on its way, relegated to a less central status. A return to the WTO might reinvigorate the role of less powerful actors, but such return does not appear an immediate prospect. The PTA phenomenon, on balance, does not appear aggressively threatening. We may, however, be underestimating the positive role of multilateralism. , Oxford University Press.
{"title":"A New Dominant Trade Species Emerges: Is Bilateralism a Threat?","authors":"Frederick M. Abbott","doi":"10.1093/jiel/jgm021","DOIUrl":"https://doi.org/10.1093/jiel/jgm021","url":null,"abstract":"Over the past decade, government trade and finance ministries have increasingly turned toward negotiating bilateral and regional trading arrangements, and away from negotiations in multilateral forums like the WTO. There are several reasons for this shift, including changes in the global political environment and negotiating obstacles encountered by the multinational business community at the multilateral level. This shift appears to be an embedded phenomenon. Positive and negative aspects of preferential trading arrangements (PTAs) are in evidence. Trade creation-trade diversion economic analysis suggests the results may be net global welfare enhancing, although such analysis does not readily assess distributional effects. The global economy is enjoying a period of sustained and widely distributed economic growth, suggesting that the PTA phenomenon is not an immediate economic threat. On the negative side, the PTAs lead to administrative complexity, and may be somewhat destabilizing as businesses are encouraged to relocate. Some countries may suffer if left out, but this risk is ameliorated by the wide availability of potential negotiating partners. The PTA negotiating environment strongly favors powerful economic actors like the United States and European Union, which are largely dictating terms to developing (and developed) countries. Developing countries, particularly the less economically powerful, are losing autonomous decision-making authority. The consequences of this are difficult to quantify, and may raise questions better attuned to moral philosophers than economists. The WTO continues on its way, relegated to a less central status. A return to the WTO might reinvigorate the role of less powerful actors, but such return does not appear an immediate prospect. The PTA phenomenon, on balance, does not appear aggressively threatening. We may, however, be underestimating the positive role of multilateralism. , Oxford University Press.","PeriodicalId":223925,"journal":{"name":"OUP: Journal of International Economic Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116174980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 20 October 2005, the 33rd UNESCO General Conference adopted by a majority of 148 votes to two the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD). The major objectives of the CCD are the recognition of the dual nature of cultural expressions as objects of trade and artefacts of cultural value and the recognition of the sovereign right of governments to formulate and implement cultural policies and measures for the protection and promotion of cultural diversity. The ambitious role assigned to the CCD by its proponents is to fill an existing lacuna for cultural objectives in public international law and to serve as a cultural counterbalance to the World Trade Organization (WTO) in future conflicts between trade and culture. Opponents, however, have criticized the CCD as an instrument of disguised protectionism and claimed that it violates freedom of expression and information. This article endeavours to explain how cultural diversity has become an issue of international law and provides a critical assessment of the strengths and weaknesses of the CCD. It explores in particular the possible linkages between the CCD and the WTO. Copyright 2006, Oxford University Press.
{"title":"The New Unesco Convention on Cultural Diversity: A Counterbalance to the WTO?","authors":"C. B. Graber","doi":"10.1093/JIEL/JGL018","DOIUrl":"https://doi.org/10.1093/JIEL/JGL018","url":null,"abstract":"On 20 October 2005, the 33rd UNESCO General Conference adopted by a majority of 148 votes to two the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD). The major objectives of the CCD are the recognition of the dual nature of cultural expressions as objects of trade and artefacts of cultural value and the recognition of the sovereign right of governments to formulate and implement cultural policies and measures for the protection and promotion of cultural diversity. The ambitious role assigned to the CCD by its proponents is to fill an existing lacuna for cultural objectives in public international law and to serve as a cultural counterbalance to the World Trade Organization (WTO) in future conflicts between trade and culture. Opponents, however, have criticized the CCD as an instrument of disguised protectionism and claimed that it violates freedom of expression and information. This article endeavours to explain how cultural diversity has become an issue of international law and provides a critical assessment of the strengths and weaknesses of the CCD. It explores in particular the possible linkages between the CCD and the WTO. Copyright 2006, Oxford University Press.","PeriodicalId":223925,"journal":{"name":"OUP: Journal of International Economic Law","volume":"227 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127824480","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is generally assumed that trade retaliation under the WTO performs some kind of 'rebalancing' by allowing the injured Member to suspend 'concessions and obligations' vis-a-vis the violating Member of a level equivalent to the level of 'nullification and impairment' suffered by the injured Member. This article argues that this perception is misguided. The article first questions if a sensible comparator exists with which equivalence for purposes of 'rebalancing' could be evaluated. It then argues that WTO arbitration decisions do not even succeed in their limited goal of providing for retaliation that will affect trade in the same amount as the WTO-inconsistent measure at issue. One reason is the use of an asymmetric and underspecified trade effects comparator. The other reason is very significant miscalculation of the trade effects of the violation, as shown by detailed legal-economic analysis of all relevant arbitration decisions. The decisions concerning countermeasures against prohibited export subsidies do not make any attempt at 'rebalancing' in the first place. The article considers political explanations of arbitration decisions. It concludes with some suggestions for improvement. Copyright 2006, Oxford University Press.
{"title":"The Myth of 'Rebalancing' Retaliation in WTO Dispute Settlement Practice","authors":"Holger Spamann","doi":"10.1093/JIEL/JGI054","DOIUrl":"https://doi.org/10.1093/JIEL/JGI054","url":null,"abstract":"It is generally assumed that trade retaliation under the WTO performs some kind of 'rebalancing' by allowing the injured Member to suspend 'concessions and obligations' vis-a-vis the violating Member of a level equivalent to the level of 'nullification and impairment' suffered by the injured Member. This article argues that this perception is misguided. The article first questions if a sensible comparator exists with which equivalence for purposes of 'rebalancing' could be evaluated. It then argues that WTO arbitration decisions do not even succeed in their limited goal of providing for retaliation that will affect trade in the same amount as the WTO-inconsistent measure at issue. One reason is the use of an asymmetric and underspecified trade effects comparator. The other reason is very significant miscalculation of the trade effects of the violation, as shown by detailed legal-economic analysis of all relevant arbitration decisions. The decisions concerning countermeasures against prohibited export subsidies do not make any attempt at 'rebalancing' in the first place. The article considers political explanations of arbitration decisions. It concludes with some suggestions for improvement. Copyright 2006, Oxford University Press.","PeriodicalId":223925,"journal":{"name":"OUP: Journal of International Economic Law","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115511026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In January 2005, at the 10th anniversary of the organization, the World Trade Organization (WTO) issued the long-awaited high-level panel report on The Future of the WTO. This essay explains why the so-called Sutherland Report, named after one of its authors, is likely to be regarded by history as a missed opportunity. The report was written by insiders, focuses on insider problems and offers what are essentially insider-based solutions. The essay addresses two specific foundational problems skirted in the Sutherland report: (i) the WTO's protectionist/producer bias and (ii) the question of coordination and coherence with other international organizations. It also offers an alternative diagnosis of the world trade system and suggests a novel paradigm to assess WTO reform proposals. Finally, some of the proposals in the Sutherland report are examined in light of this novel paradigm.
{"title":"The Sutherland Report: A Missed Opportunity for Genuine Debate on Trade, Globalization and Reforming the WTO","authors":"Joost Pauwelyn","doi":"10.1093/JIELAW/JGI023","DOIUrl":"https://doi.org/10.1093/JIELAW/JGI023","url":null,"abstract":"In January 2005, at the 10th anniversary of the organization, the World Trade Organization (WTO) issued the long-awaited high-level panel report on The Future of the WTO. This essay explains why the so-called Sutherland Report, named after one of its authors, is likely to be regarded by history as a missed opportunity. The report was written by insiders, focuses on insider problems and offers what are essentially insider-based solutions. The essay addresses two specific foundational problems skirted in the Sutherland report: (i) the WTO's protectionist/producer bias and (ii) the question of coordination and coherence with other international organizations. It also offers an alternative diagnosis of the world trade system and suggests a novel paradigm to assess WTO reform proposals. Finally, some of the proposals in the Sutherland report are examined in light of this novel paradigm.","PeriodicalId":223925,"journal":{"name":"OUP: Journal of International Economic Law","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122022503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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