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The commonplace narrative regarding China's participation in the WTO is that the original expectations have not been matched in subsequent experience. China has not behaved in accordance with the spirit (and sometimes the letter) of its commitments. Reactions by trading partners have been from critical to hostile, and some have even called for a WTO without China, ignoring the boost to international trade that China's accession has provoked. Yet, China's participation in the WTO cannot remain un-addressed. The US almost brought the WTO to its knees largely because of China, and the EU has enacted laws to counteract China's trade expansion. In this short paper, we argue that the solution to the China-issue passes through an addition and re-invigoration of the multilateral trade rules.
This chapter discusses the remedies that are available under WTO law. It explains that the preferred solution to a dispute is a mutually agreed solution. If this is not possible, and the defending party does not implement any adverse rulings, the defending party may offer compensation (in the form of equivalent trade concessions). The last and least desirable option is retaliation, or the suspension of concessions. The chapter explains the procedures for each of these possible remedies, with a particular focus on the arbitration under Article 22.6 of the DSU of the amount of retaliation proposed by the complaining party. The chapter also discusses the “sequencing” problem arising out of the deadlines to request the right to retaliate in the DSU. Finally, the chapter discusses the special rules governing disputes over subsidies and the role played by suggestions by the panel and Appellate Body on implementation.
This chapter sets out the history of the GATT and the WTO, with particular attention to the evolution of dispute settlement in the GATT/WTO from the Havana Charter to the Uruguay Round and beyond. The chapter provides an explanation and an overview of the WTO’s Dispute Settlement Settlement Understanding (DSU), and summarizes efforts to reform the process since 1995. The chapter also discusses the assistance available to developing countries in WTO dispute settlement and provides some tips on researching WTO law. Finally, the chapter provides an overview of the current crisis in the WTO Appellate Body.
This chapter examines the sources of law used by WTO adjudicators, starting with the WTO “covered agreements.” The chapter also discusses the status of other international agreements, public international law, and general principles of law, under WTO law. The chapter includes a comprehensive discussion of the issue of precedent under WTO law. The chapter also includes a detailed analysis of how the Vienna Convention on the Law of Treaties is used by WTO panels and the Appellate Body to interpret WTO law.
This chapter describes the next steps in a WTO dispute settlement proceeding after the issuance of panel or Appellate Body reports. The chapter describes the rules governing the adoption and implementation of reports. It explains the process for negotiating a “reasonable period of time” (RPT) for a defending party to implement adverse findings. The chapter also explains the process for arbitration under Article 21.3(c) of the DSU on the RPT in the event that the parties cannot agree. Next, the chapter explains the process for resolving disputes as to whether the defending party has properly implemented any adverse findings under Article 21.5 of the DSU. The chapter explains the similarities and differences between the Article 21.5 process and normal panel process.
This chapter discusses the rules and procedures governing evidence and burden of proof in WTO dispute settlement proceedings. The chapter explains that the WTO follows the normal rule that a party asserting a fact or claim bears the burden of establishing that fact or claim. The chapter discusses the types of evidence that may be submitted in WTO dispute settlement proceedings, including through the use of experts (particularly in cases involving SPS measures). The chapter examines the standard of review used in WTO dispute settlement proceedings. The chapter also discusses the special rules governing confidential information, including the rules governing so-called "business confidential information" and other categories of very sensitive information.
Many of the WTO covered agreements contain special rules and procedures that apply to dispute settlement proceedings in disputes arising out of those agreements. For example, the WTO Anti-dumping Agreement contains a controversial and much-analyzed standard of review to be applied by WTO panels in anti-dumping disputes. These rules usually apply in addition to the normal rules under the WTO Dispute Settlement Understanding. This chapter analyzes all of the special rules and procedures contained in each of the covered agreements. It also describes the special procedures applicable to developing countries under the 1966 Understanding and the developing country provisions of the DSU. Finally, the chapter discusses arbitration under the DSU, with a particular focus on the sui generis Bananas Arbitrations.
This chapter examines the WTO Appellate Body, describing the origins and structure of the Appellate Body. The chapter goes step-by-step through the appellate process. It discusses some of the issues that have arisen regarding the scope of appellate review, including the distinction between questions of law and questions of fact; the treatment of municipal law; remand authority; judicial economy; and appeals under Article 11 of the DSU. The chapter provides a detailed explanation of the current crisis in the WTO Appellate Body and describes the efforts that have been made to resolve the impasse, includingg the so-called Walker Process and the MPIA arrangement that has been set up by several Members as a temporary alternative to the Appellate Body.
This chapter addresses the jurisdiction of the WTO dispute settlement system and examines the terms of reference of WTO panels. It discusses the jurisdiction ratione materiae and the jurisdiction ratione personae of WTO panels, including the concepts of the “measure” and “legal claims” that may be brought before WTO panels. The chapter examines how the concept of standing (locus standi) is applied in WTO dispute settlement. It also discusses the process for reviewing disputed issues regarding the jurisdiction/terms of reference of a panel. The chapter also discusses arbitration in the WTO dispute settlement system.
This chapter contains a comprehensive, step-by-step analysis of the consultations phase in WTO dispute settlement. Then the chapter examines the practice and procedure used to establish a WTO panel and the composition of the panel. The chapter then analyzes the panel process step-by-step, including the organizational meeting, the working procedures, the written submissions to the panel, the hearings of the panel, the interim report, and the final report. The chapter also discusses the role of third parties and of the WTO Secretariat in the panel process.