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Although international commercial arbitration is not subject to as much criticism as investor-State arbitration, it is nonetheless facing challenges going forward. These challenges are several, and only some can be addressed in this chapter. Some relate to concerns that have been with international arbitration for a long time. These include costs, delay and excessive formality, as well as arbitrator neutrality. Others – arbitration ethics, diversity, and transparency – are not new, but are taking on greater urgency. Still others simply represent new developments more or less extrinsic to international arbitration but with which international arbitration must cope. Among these changes to the broader international arbitration landscape are the data protection movement and the rise of both settlement agreements and international commercial courts.
The term ‘international organization’ covers a wide field, from the International Red Cross to the Food and Agricultural Organization, the World Trade Organization and the European Union. The place of comparative law in the establishment and functioning of these institutions will thus vary greatly according to the organization. It is nevertheless possible to identify certain recurring aspects relating to the establishment, functioning, and control of international organizations in which comparative law has an actual or potential role to play. This is unsurprising because law itself is present in all these dimensions of international organization activity.
First, international organizations themselves represent the result of decisions of both a legal and a political character. Second, international organizations, once created, become legally anchored within one legal system or another, the characteristics of which must be understood by all who may come into contact with it. Third, international organizations commonly engage in prescriptive or normative activity by which secondary law (i.e. law generated by the organization as distinct from the law that created the organization itself) comes into being. Fourth, some of the most important international organizations from a legal point of view have as a mission the developing of draft treaties that are intended to be signed and ratified by a sufficient number of states to come into force or the production of model legislation that national legislatures may enact into law. Fifth, whether an international organization generates legal norms or engages in a quite different set of activities, it is more likely than not operating according to a more or less formal set of procedures that may either have been prescribed for the organization on its founding or established by the organization itself as and when it began conducting its activities. In either case, for the organization itself, those procedures very much constitute law. Sixth, more and more international organizations perform adjudicatory functions, which require that they both apply legal norms and observe legal procedures. Seventh, and finally, international organizations may be subject to external legal norms that further constrain their freedom of action.
This is the third volume in the series Columbia Studies on WTO Law and Policy. Our focus this time is on the Law and Economics of Contingent Protection. Our invited authors contributed chapters on antidumping, subsidies and countervailing measures, and safeguards.
Wouters and Coppens provide insight into the World Trade Organization (WTO) multilateral disciplines on subsidies and on measures taken to respond to subsidies (i.e., countervailing duties [CVDs]). These disciplines are articulated in the GATT 1994, the Agreement on Subsidies and Countervailing Duties (SCM Agreement), as well as the Agreement on Agriculture (AoA). After an overview of the historical and legal context of the SCM Agreement, the authors provide a systematic legal analysis of its main provisions, integrating the substantial amount of relevant case law. Finally, the specific disciplines for agricultural subsidies, as spelled out in the AoA in interaction with the SCM Agreement, are clarified.
Howse takes issue with the decision of the WTO Membership to abandon the so-called nonactionable subsidies, that is, subsidies against which no reaction by affected Members was permissible. These subsidies lapsed in 2001. Howse takes the view that this decision was not well thought out, and claims that developing countries might be the losers here. He offers arguments in favor of reinstating this category in the current SCM Agreement.
Francois provides an economist's reaction to the current regulatory framework regarding the calculation of benefit stemming from the payment of subsidy.
The book discusses the regulatory framework of contingent protection in the World Trade Organization - antidumping, countervailing duties, and safeguards - as well as an economic analysis of these instruments. The book's various chapters illuminate the basic functioning of all three.
Comparative perspective – Guardians of subsidiarity in United States? Not senators, not state legislators – Contrast with EU – EU parliaments do double duty – COSAC – Re-entry of federal courts on the scene – In EU: possible lessening of pressure on European Court – Insufficient time
Developing countries make up the majority of the membership of the World Trade Organization. Many developing countries believe that the welfare gains that were supposed to ensue from the establishment of the WTO and the results of the Uruguay Round remain largely unachieved. Coming on the heels of the 9/11 terrorist attacks, the ongoing Doha Development Round, launched in that Middle Eastern city in the fall of 2001, is now on 'life support'. It was inaugurated with much fanfare as a means of addressing the difficulties faced by developing countries within the multilateral trading system. Special and differential treatment provisions in the WTO agreement in particular are the focus of much discussion in the ongoing round, and voices for change are multiplying because of widespread dissatisfaction with the effectiveness, enforceability, and implementation of those special treatment provisions.
In this volume, we have put together an internally coherent series of papers discussing the most crucial, to our mind, aspects of developing countries' participation in the WTO. Its timing was deliberate: The Doha Round, hailed as the development-round, was supposed to address issues of concern for developing countries. And there are many: preference erosion (as a result of tariff reductions during the Uruguay Round), asymmetric (across sectors) tariff liberalization, the onus of implementing the TRIPs Agreement, participation in dispute settlement procedures, and the current remedies régime, to name a few. Special and differential treatment, the cornerstone describing developing countries' participation in the GATT/WTO, is very much under discussion in the ongoing round. There is widespread (across developing countries) dissatisfaction with its current workings, and voices for change are multiplying.
One of the major challenges facing the WTO is how to facilitate the fuller integration of developing countries in the multilateral trading system. Although the share of developing countries as a group in world trade has increased to 30 percent in recent years, the majority of developing countries, particularly the least-developed countries (LDCs), have seen their share in world trade stagnate or even decline. The lack of active participation of LDCs in the multilateral trading system has been a source of concern. Historically, special and differential treatment, technical cooperation, and capacity building have been at the forefront of the GATT/WTO's efforts to facilitate the integration of developing countries into the multilateral trading system.
George A. Bermann, Walter Gellhorn Professor of Law and Jean Monnet Professor of European Union Law, Columbia Law School; Director of the European Legal Studies Center Columbia,
Petros C. Mavroidis, Edwin B. Parker Professor of Foreign and Comparative Law, Columbia Law School; Professor University of Neuchatel (Switzerland)
This is the first volume of the Columbia Law School series on “The Law and Policy of the World Trade Organization.” This series, consisting of biennial thematic volumes, is based upon the papers presented in the Seminar in WTO Law and Policy organized every fall semester at Columbia. Each volume – representing the papers that will have been presented in that seminar over a two-year period – addresses different, but always vital, aspects of the WTO integration process. The contributors are, without exception, outstanding experts in their field of expertise, and they include economists, political scientists, and lawyers, all specializing in the WTO. By the time these volumes appear, each author will have in principle benefited from presentation and discussion of their work in a Columbia Law School seminar composed of a highly select group of WTO students.
WTO law is a dynamic and richly evolving field, and the series will reflect that reality. Upcoming volumes will deal with WTO law and developing countries; intellectual property in the WTO; and the WTO dispute resolution process.
This book gathers papers from distinguished experts discussing how health-based trade-restrictive measures have fared in WTO case law. With an analysis of applicable primary law (GATT, TBT, and SPS) and all case law in the area of trade and health, this book offers a comprehensive discussion on the standards established for the regulation of public health and safety issues. Experts in the field answer two important questions: how can a country which is a member of the WTO define its policy on health issues; and what are the WTO constraints on the exercise of health policy, if any? The various contributions in this volume aim to demonstrate how the world trading regime has come of age and accepted that trade liberalization cannot take place at the expense of nationally defined social values.