乔斯特·鲍维林和克日什托夫·佩尔奇研讨会导言:“谁守护着‘体制的守护者’?”秘书处在WTO争端解决中的作用

IF 1.2 Q2 INTERNATIONAL RELATIONS AJIL Unbound Pub Date : 2022-12-12 DOI:10.1017/aju.2022.64
Chantal Thomas
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引用次数: 0

摘要

在世界贸易组织(WTO)上诉机构崩溃这一公认的国际贸易和多边主义危机中,Joost Pauwelyn和Krzysztof Pelc提出了挑衅性的观点,Pauwelin和Pelc认为,世贸组织争端解决体系的危机不仅源于外部冲击,还源于其基础的裂缝。他们认为,世贸组织秘书处的运作方式已经远远超出了为世贸组织小组成员和上诉机构法官解决世贸组织缔约国之间争端提供研究和后勤支持的范围。相反,秘书处对世贸组织各小组和上诉机构进行的实质性分析积累了很大的影响力。这种影响的一部分是由于体制特征本身是有意设置的,如秘书处官员的全职和持续存在与世贸组织个别裁决者有时限、因此不太稳定的参与之间的对比,而产生的。其他形式的影响来自明确的机构授权不太明确的事态发展,例如先例的出现,由于秘书处的长期机构记忆,秘书处比世贸组织的裁决者更适合管理先例。Pauwelin和Pelc描述了秘书处履行的八项不同的行政职能,这些职能有助于其在世贸组织争端解决程序中发挥巨大影响力。2这些职能与他们在培训和专业知识方面发现的不对称性相结合,也与秘书处对裁决者施加的各种形式的机构控制相结合。3综合起来,Pauwelin和Pelc断言,秘书处的影响力使世贸组织争端解决系统与其说是一个司法论坛,不如说是一种“独特的国际行政审查程序”,Pauwelin和Pelc表明,在许多方面备受赞誉的争端解决制度的“司法化”从未以其感知的形式存在。相反,
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Introduction to the Symposium on Joost Pauwelyn and Krzysztof Pelc, “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement”
Into the midst of the widely acknowledged crisis of international trade and multilateralism, represented sharply by the breakdown of the World Trade Organization (WTO) Appellate Body, comes a provocative perspective by Joost Pauwelyn and Krzysztof Pelc, in “WhoGuards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement,” published in the American Journal of International Law.1 Pauwelyn and Pelc suggest that the crisis of the WTO dispute settlement system (DSS) stems not only from external shocks, but also from cracks in its foundation. They argue that the WTO Secretariat operates in a way that has expanded far beyond providing research and logistical support toWTO panelists and Appellate Body judges as they resolve disputes amongWTO states parties. Rather, the Secretariat has amassed a great deal of influence over the substantive analyses that WTO panels and the Appellate Body produce. Some of this influence has arisen as an unanticipated outcome of institutional features that were themselves intentionally put into place, such as the contrast between the full-time and ongoing presence of Secretariat officials, and the time-bound, and therefore less stable, participation of individual WTO adjudicators. Other forms of influence have arisen from developments whose explicit institutional mandate is less clear, such as the emergence of precedent, which the Secretariat is better placed to manage due to its longterm institutional memory than are WTO adjudicators. Pauwelyn and Pelc describe eight distinct administrative functions that the Secretariat performs that contribute to its outsized influence in WTO dispute settlement proceedings.2 These functions combine with asymmetries they identify in training and expertise, as well as with various forms of institutional controls exerted by the Secretariat over adjudicators.3 When taken together, Pauwelyn and Pelc assert, the influence of the Secretariat renders the WTO dispute settlement system less a judicial forum than a “sui generis process of international administrative review.”4 With bracing clarity through this analysis, Pauwelyn and Pelc show that the “judicialization” of the dispute settlement system that had been so celebrated in many ways never existed in its perceived form. Rather,
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AJIL Unbound
AJIL Unbound Social Sciences-Law
CiteScore
2.50
自引率
0.00%
发文量
40
审稿时长
8 weeks
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