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This chapter sketches relevant features of the subject of analysis: the WTO dispute settlement system. This book on treaty interpretation by the WTO Appellate Body is essentially concerned with how the Appellate Body has used interpretation to simultaneously assert and justify its exercise of the judicial function in the WTO. This presupposes an awareness of the characteristics of this dispute settlement system, its jurisdiction, and the law that applies in adjudicating disputes between WTO Members. For that purpose, the chapter introduces the WTO dispute settlement system, its jurisdiction, the applicable law, and the applicable principles of treaty interpretation. It also contrasts the effect of authentic interpretations of the WTO treaty language with that of judicial interpretations, mostly from a practical perspective.

This chapter begins by discussing the extent to which human rights can be applied in WTO dispute settlement, finding that they can only be used as an aid to interpreting the ‘covered agreements’. It then takes up that approach and interprets the ‘TRIPS flexibilities’ using the right to access to medicine. It demonstrates that the right serves as a helpful argument for a broad interpretation of the flexibilities, but suffers from the defect that it is merely one argument amongst many and cannot provide developing countries with legal security as to the interpretation of the flexibilities. It is this lack of legal security that discourages developing countries from making use of the flexibilities, particularly in the face of pressure for greater intellectual property protection by the developed world. The chapter also describes the action taken within the WTO to remedy the problem of access to medicines, its legal status, and analyzes whether the action is sufficient.

This chapter focuses on the inherent powers of the Appellate Body, and how the availability and exercise of such powers influences the interpretation and application of procedural rules in WTO dispute settlement. The analysis in this chapter builds on the distinction, made in Chapter 4, between procedural and substantive silences in WTO treaty language and the Appellate Body's interpretation of those silences. The chapter helps to explain how and why the appreciation of the judicial function of the WTO Appellate Body is commonly too narrowly construed on the basis of the DSU.

Most research on the role of developing countries in the WTO Dispute Settlement (DS) system has focused on their propensity to participate as complainants, respondents, and third parties. Much of this line of research has sought to examine claims that developing countries are underrepresented as complainants and/or overrepresented as respondents in the DS system. This chapter examines whether the outcomes with regard to legal claims differ between developing and developed countries. It employs a dataset describing various aspects of the DS system that have been compiled under a World Bank project to take a first cut at exploring what the experience to date suggests regarding this question. The objective underpinning the assembly of the dataset was to systematically compile information on various aspects of the DS system, in order, inter alia, to facilitate assessment of its implications for developing countries.

This chapter examines whether World Trade Organization (WTO) dispute settlement bodies can effectively deal with competition disputes. The chapter describes how WTO rules and the Dispute Settlement Understanding (DSU) are already applicable to trade-related competition rules of WTO Members and to individual decisions on their application by competition authorities. The discussions in the WTO Working Group on the Interaction of Trade and Competition Policy have revealed reservations against the application of the DSU, notably against review by WTO dispute settlement bodies of individual decisions. According to this chapter only some of these reservations are justified in view of certain weaknesses of WTO dispute settlement procedures. Even though the full application of the DSU to future WTO competition rules should not present major problems, restriction of dispute settlement provisions in a future competition agreement to review of laws might be a necessary price to pay for reaching political consensus on such an agreement.

This chapter provides a brief analysis of the enforcement tools foreseen in the WTO dispute settlement mechanism. It focuses in particular on some of the peculiarities which differentiate them from the EU legal system. As the analysis shows, the relevance of reciprocity and post-litigation negotiations between States influences the legal nature of the WTO dispute settlement system, which today remains to a large extent a mixed or hybrid system. This contrasts one of the mantras diffused in the legal scholarship immediately after the entry into force of the Uruguay Round Agreements. It also represents a vehicle for the potential fragmentation of the multilateral legal framework governing international trade, which contributes to undermining the idea of uniformity of the obligations arising under the WTO Agreements for all Members.

This chapter analyzes international harmonization of rules on trade remedies, comprising anti-dumping duties, countervailing duties and safeguards. Originating in domestic law in the US in the late 19th and early 20th century, these rules were subsequently established as international trade rules under the GATT and further elaborated under the WTO. Persistent conflicts between harmonized rules and the domestic laws of some states, notably the US and the so-called “new users”, are analyzed in conjunction with mechanisms for monitoring domestic implementation under the GATT/WTO (dispute settlement mechanisms and committee review).

The WTO’s dispute settlement system has been relatively successful in resolving disputes over the past twenty years. One consequence of that success is an increasing number of cases involving ever more complex issues. As a result, the WTO dispute settlement system is now under considerable strain. The resources of the WTO Secretariat, which provides staff support to dispute settlement, have been stretched to the point where cases are delayed because of staffing shortages. Given the lack of success in the Doha negotiations, WTO members will likely want to bring even more dispute settlement cases, exacerbating an already difficult situation. This chapter examines a number of changes that might be made to the system that would help to ease the current dispute settlement problems, speed up the process, and ensure that the system will continue to be as successful over the next twenty years as it has been in the past.

The authors argue that WTO law protects the community interest of promoting an essentially rules-based and fair world market. The core concern of WTO law is to protect trade-conducive structures that enable and further global economic activity for the purpose of generating overall welfare. The foundational principles of national treatment and most favored nation aim at protecting the equality of competitive conditions between WTO members. Derogations from WTO law are strictly limited whenever these principles are affected. The WTO enforcement regime entitles virtually every member to bring a complaint if a nondiscrimination obligation is breached. Although bilateral elements have long been dominant and still prominently exist in the WTO legal order, communal elements are slowly overlapping and superseding bilateral elements as part of the legal and institutional transformation of the world trade system brought about by the founding of the WTO, in particular the establishment of the Appellate Body.

The resolution of disputes related to issues of fresh water scarcity, degradation, and access to water are evident in practice. There is a staggering diversity of institutions with judicial or quasi-judicial authority over these matters, as well as diplomatic means which can help settle these various disputes. A trend towards variation and multiplication of available mechanisms for resolving water-related disputes can be observed. As a consequence of both inter-state and mixed-party disputes concerning water, international courts and tribunals have amassed growing bodies of decisions in water law, and their reliance on the case law of other jurisdictions suggests an evolving harmonization in this field. This cross-fertilization among traditional dispute settlement bodies has progressed concurrently with the development of novel procedures tailored to the uniquely collective interests at stake in natural resource disputes.

Recent years have confronted the World Trade Organization (WTO) Dispute Settlement System (DSS) with an intense wave of complex linkage disputes. US-Clove Cigarettes, which stands at the centre of this chapter, serves as the second case study in the investigation into the DSS’s goal-attainment endeavours in this category of WTO disputes. The chapter begins with a review of several jurisprudential milestones leading from the early US-Shrimp, examined in Chapter 5, to the more recent US-Clove Cigarettes, examined here, with a view to portraying the legitimation continuum of which the latter dispute forms a part. The chapter then discusses the intricate legitimacy setting in which US-Clove Cigarettes unfolded and, through a close goal-oriented analysis, shows how the intensified legitimacy concerns aroused shaped the goals pursued by the DSS and the judicial choices made towards their achievement. The chapter concludes by linking the goal-attainment efforts identified to the broader DSS goal-based effectiveness framework advanced in the book.

This chapter reviews the broader principles in the international intellectual property (IP) system that fulfil an indirect integration or conflict resolution function, with a focus on those emanating from and applicable to the Trade Related Aspects of International Property Rights (TRIPS) Agreement. In focusing on Articles 7 and 8 of TRIPS, the chapter builds on prior analysis about the role of these provisions in establishing an agreed, common object and purpose of the principal global IP treaty with relevance beyond TRIPS. In light of the origins and negotiation history of Articles 7 and 8 TRIPS, the chapter shows how these provisions can be applied to integrate ‘external’ objectives and interests via interpretation and implementation. Next, this chapter reviews their very poor record of application in the first twenty years of World Trade Organisation (WTO) dispute settlement. It concludes with suggestions for an appropriate recognition of external norms, objectives, and interests via Articles 7 and 8.

The chapter outlines the enormous importance of Word Trade Organization (WTO) law to China’s state control and its implications for China’s state-permeated economy and welfare system. The chapter demonstrates the PRC’s contradictory policies, not least by highlighting China’s good compliance record with adverse WTO Dispute Settlement Body rulings and contrasting this with China’s creativity in circumventing implementation of WTO law in the banking sector. In line with the core argument of the book, China’s contradictory policy is traced to trade-offs between different economic and nationalist legitimization needs and the varying degrees of influence of different actors within the party-state. The chapter ends by discussing the implications for the future international order, referencing two modes of action that provide China’s contradictory WTO policy with systemic relevance: China’s instrumental approach to law and its undermining of the key definitions that underpin the core vocabulary of international trade policy.

This chapter argues that the narrow definition of conflict prevailing in international law is problematic in legal terms. It submits that an adequate definition of conflict of norms firstly has to be a wide one that includes incompatibilities between permissions and obligations, permissions and prohibitions, and obligations and prohibitions; and secondly should to rely on a ‘test of violation’. Additionally, this chapter clarifies misunderstandings in panel practice and academic writings relating to WTO Appellate Body rulings which have not in fact addressed the issue of conflicting norms of conduct, but the problem of inconsistent norms granting competences. In conclusion, the definition of conflict of norms in legal theory, in any given legal fields and in international law should read: There is a conflict between norms, one of which may be permissive, if in obeying or applying one norm, the other norm is necessarily or potentially violated.

Chapter 5 contrasts two policies designed to address “unfair” trade practices—anti-dumping measures and challenges to market access barriers. Both are non-reciprocal policies that are characterized by one-sided interest group mobilization and particularly high degrees of delegation to the Commission. The mobilized societal actors are different, however, and demand different policy outcomes: protectionism and foreign market opening. Because societal politics are one-sided and the patterns of political institutions favor the demandeurs of action, the EU is active both in imposing anti-dumping duties and in prosecuting foreign market access barriers.

This chapter sheds light on the relationship between the composition of the bench and the sociological legitimacy of the judicial branch of the World Trade Organization (WTO). Two identity characteristics are consistently part of the criticism of the WTO’s bench: the lack of female adjudicators as well as individuals with academic experience. Overall, however, the identity of the bench does not appear to matter greatly for how WTO Members evaluate its exercise of authority. We suggest that the role of the WTO’s Legal Affairs Division and the Appellate Body Secretariat in streamlining outcomes and procedures may best explain this, as it helps prevent such diversity from manifesting in dispute rulings. Alternatively, it tells us that judicial diversity matters more for the bench’s normative legitimacy—and for scholars—than it does for governments.

The chapter assesses recent developments in intellectual property protection in the EU–Canadian Comprehensive Economic Cooperation Agreement and the Trans-Pacific Partnership Agreement, and extrapolates results of these negotiations to the pending EU–US negotiations on the Transatlantic Trade and Investment Partnership (TTIP). It discusses the likely implications of ever-increasing protection of IPRs on international trade, innovation, and technology transfer. Given the complex interaction of TRIPs and WIPO Agreements with the newly emerging agreements, the chapter finally examines the structure and operation of dispute settlement and how existing fragmentation could be overcome. Intellectual property, it is submitted, offers an important case to extend the jurisdiction of WTO dispute settlement to preferential trade agreements.

By the end of the twentieth century, the concept of good governance was applied in specific policy fields like international environmental law and in the more general frame of policy by the international organizations. The good governance perspective has also been developed in the context of globalizing administrative law. At present, the implementation of good governance has a much broader meaning than it did twenty years ago. The concept is clearly in development and transition. Elements such as propriety, transparency, participation, accountability, accountability and human rights have been added to the concept. All these elements have been incorporated into several documents over the course of time. Within the framework of the Council of Europe, the ECtHR develops its own interpretation of the principle of good governance in the review of government action. We see that the principles of international law and more specifically the principle of effectiveness and the principle of legitimate expectation have been applied by the WTO Dispute Settlement Body. At the grassroots of international law, good governance has been accepted as a principle of law, in national legal systems, and from there in regional and international institutions. So, it functions as a norm for the administration and the court uses elements of the principle in its review. The concept is applied as such and in the different policy fields. In describing the conditions for principles of international law we conclude that the good governance principle is a principle of international law.