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9 - Arbitration as an alternative to litigation in the WTO: observations in the light of the 2005 banana tariff arbitrations

from PART II - Accomplishments and Future Prospects of the WTO Dispute Settlement System

Published online by Cambridge University Press:  05 March 2012

Hunter Nottage
Affiliation:
Victoria University
Jan Bohanes
Affiliation:
Cambridge University
Yasuhei Taniguchi
Affiliation:
Keizai University, Tokyo and Member, WTO Appellate Body
Alan Yanovich
Affiliation:
WTO Appellate Body Secretariat
Jan Bohanes
Affiliation:
Sidley Austin LLP
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Summary

This [Arbitral] Chamber is to have all the virtues which the law lacks. It is to be expeditious where the law is slow, cheap where the law is costly, simple where the law is technical, a peace-maker instead of a stirrer up of strife.

At the inauguration of the London Court of Arbitration in 1892

Commercial arbitration is … uncommonly well adapted to developing new rules and practices better suited to the conditions of the modern world.

Sir Robert Jennings

The 2005 Banana Tariff Arbitrations were arguably the most important arbitrations to have been conducted under the auspices of the World Trade Organization (WTO). These arbitrations examined issues of economic and political significance for the multiple complainants and third parties involved. They raised questions of substantive complexity entailing a workload comparable to litigation in WTO panel and Appellate Body proceedings. The Banana Tariff Arbitrations were however unique compared to previous cases litigated in the WTO. They were held outside the scope of normal WTO dispute settlement procedures set out in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and, as such, were the first sui generis arbitrations held under the auspices of the WTO. Furthermore, they involved procedures and time-frames that differed significantly from cases previously litigated in the WTO and were completed extremely expeditiously in comparison. Arguably, as an alternative to litigation in the WTO, the Banana Tariff Arbitrations were a resounding success.

Type
Chapter
Information
The WTO in the Twenty-first Century
Dispute Settlement, Negotiations, and Regionalism in Asia
, pp. 212 - 247
Publisher: Cambridge University Press
Print publication year: 2007

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