Journal of International Economic Law - recent issues

The WTO Appellate Body's Decision-Making Process: A Perfect Model For International Adjudication?

Alvarez-Jimenez, A. — 2009-06-05

The functioning of the Appellate Body (AB) is virtually perfect in terms of collegial decision-making. During its first 12 years, it has produced more than 70 reports dealing with controversial trade and non-trade issues with results that are astonishing. First of all, the AB has usually met the strict 90-day deadline to render its decisions, established by the Dispute Settlement Understanding (DSU). Second, despite the fact that the AB has dealt with issues of paramount domestic and international relevance, which could lead to internal divisions among AB Members, the collegial decision-making process of the AB has managed to decide all cases so far with only three separate opinions. And third, even though the AB decides by Divisions, its case law has been coherent through all of them. How has the AB's; collegial decision-making process been able to achieve these results? Former AB Members have provided some descriptions of the AB's; decision-making process. However, they face limitations on the scope of the disclosure of how the AB decides appeals and therefore can provide partial explanations for the success of the institution. This article seeks to fill in this gap using theoretical and comparative analyses to reveal the formal features and informal practices of the AB that allow it to achieve the aforementioned outcomes.

Regulatory Convergence, Security and Global Administrative Law in Canada-United States Trade

Irish, M. — 2009-06-05

The North American Free Trade Agreement (NAFTA) contains provisions that encourage regulatory convergence among member countries. Convergence within regional trade agreements raises several issues, including questions of political accountability and the potential application of most favoured nation (MFN) rights to any mutual recognition agreements (MRAs) that are negotiated. The author suggests an interpretation of MFN obligations that is compatible with closed MRAs. As well, she addresses the contribution of global administrative law to procedures for accountability. This article argues that border security concerns should not over-ride other public policies on levels of convergence and economic integration. Even between contiguous countries, there is no reason to presume that regional trade agreements ought to adopt common security perimeters.

MFN Exemptions Under the General Agreement on Trade in Services: Grandfathers Striving for Immortality?

Adlung, R., Carzaniga, A. — 2009-06-05

WTO Members have more leeway under the General Agreement on Trade in Services (GATS) to elude the WTO's basic most favoured nation (MFN) obligation than in merchandise trade under the General Agreement on Tariffs and Trade. In particular, under the Annex on Article II Exemptions, each Member had the one-off opportunity—at the GATS’ entry into force in 1995 or, if later, the date of WTO accession—to seek cover for the retention of whatever departures from MFN treatment. Such MFN exemptions are subject to relatively soft disciplines only. The relevant Annex provides that their duration should not exceed 10 years in principle, and that they be subject to negotiation in any subsequent trade round. In addition, the GATS allows for departures from MFN treatment, which are not subject to time constraints, including for Economic Integration Agreements and recognition measures related to standards, certificates and the like. Over 90 WTO Members (counting EC12 as one) have listed MFN exemptions for close to 500 measures in total. This article discusses their role within the structure of the GATS as well as governments’ underlying policy intentions: grandfathering clause or active/offensive policy tool? It further traces the sectoral and modal patterns of current exemptions, their use by different groups of Members and the—limited—changes offered in the services negotiations to date. The authors submit that the non-availability of new exemptions, including for measures that had escaped Members’ attention at the relevant point in time, could have added to the popularity of potential substitutes (including in the context of Economic Integration Agreements), promoted an excessively broad interpretation of existing exemptions and discouraged governments from rescinding those that had served their initial purpose. A more flexible approach might thus be warranted; possible options are being discussed.

The WTO Appellate Body's Exercise of Judicial Economy

Alvarez-Jimenez, A. — 2009-06-05

The concept of judicial economy is well accepted in World Trade Organization (WTO) litigation, and it stands for the proposition that WTO panels do not need to rule on every single claim made by complaining parties, only on those required to settle the dispute in question. However, little has been discussed about the possibility of the Appellate Body's; exercising judicial economy itself. Article 17.12 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) seems to prevent the existence of judicial economy at the appeal level by providing that ‘the Appellate Body shall address each of the issues raised in accordance with paragraph 6 during appellate proceeding’. However, despite this understanding of the scope of Article 17.12, held by some of the original members, the Appellate Body began freeing itself from a strict reading of this provision, and in its report in United States – Subsidies on Upland Cotton, without any these members on the bench, made a clear statement in this regard. The article illustrates the types of judicial economy the Appellate Body is exerting, highlights its exceptional character and shows its implications for parties and for the adjudication of WTO disputes.

The DSU Interim Review--Need for its Elimination or Extension to the Appellate Body Stage?

Steinbach, A. — 2009-06-05

One innovation submitted for the review of the Dispute Settlement Understanding (DSU) has been to extend the interim review to the appeal procedure before the Appellate Body. The proposal seeks to enhance Members control over the outcome of the dispute settlement proceeding. In contrast, numerous commentators have argued for the elimination of the interim review from the DSU by questioning its utility and giving preference to time savings for the proceedings. The merits of both proposals, elimination or extension, should be evaluated on the basis of the interim review's contribution to the effective resolution of disputes between parties. Based on past experience, this article evaluates the interim review's role to reach a mutually agreed solution (MAS) and to provide parties the opportunity to introduce new evidence, raise new legal arguments or request clarifications and corrections. To that effect, it examines the scope of the interim review as interpreted by the adjudicative bodies of the World Trade Organization (WTO) and identifies the limitations on the scope of Member's control during the interim review. The article concludes that an extension to the appeal stage would be of limited utility and potentially even incompatible with essential prerequisites of a legalistic procedure. As regards the panel stage, parties’ rights would not be prejudiced by the removal of the interim review from the proceedings.

Foreign Professionals in the United States: Regulatory Impediments to Trade

Mattoo, A., Mishra, D. — 2009-06-05

Changes in demographics and patterns of investment in human capital are creating increased scope for international trade in professional services. India, one of the largest exporters of skilled services, and the United States, one of the largest importers of skilled services, are two countries that mirror these broader global trends. The scope for mutually beneficial trade is today inhibited not only by quotas and discriminatory taxation, but also by a number of domestic regulatory requirements—including qualification and licensing requirements. To illustrate the nature and implications of these regulatory impediments, this article focuses on the regulatory requirements that Indian professionals face in the US market. It explores the consequences of regulatory discrimination and the economic cost of regulations, and presents some illustrative estimates. The article concludes by examining how the trade-inhibiting impact of regulatory requirements could be addressed through bilateral and multilateral negotiations.

China-US BIT Negotiations and the Future of Investment Treaty Regime: A Grand Bilateral Bargain with Multilateral Implications

Congyan, C. — 2009-06-05

China and the United States declared to launch the Bilateral Investment Treaty (BIT) negotiations at the conclusion of the fourth China–US Strategic Economic Dialogue (SED) on June 18, 2008. This BIT negotiation revives a failed BIT program of 20 years ago. It can be expected that China–US BIT negotiations will be concluded successfully because China's approach to investment treaties has recently been Americanized to large degree and because China–US SED can also provide institutional support. Nevertheless, China should seriously evaluate what it will benefit from and will lose from this BIT program from multiple angles, not limited to investment regime only. What is more important, at the historical moment when structural deficiencies have made the investment treaty regime at a crossroad, China and the United States as great powers have a mandate to enhance to reconstruct and make it more balanced, responsive, and accountable through their BIT program. For this purpose, three fundamental dimensions of Special and Differentiated (S&D) treatment, conduct of investors, and sustainable development should be deliberately addressed.

International Investment Law Between Commitment and Flexibility: A Contract Theory Analysis

van Aaken, A. — 2009-06-05

This article analyzes international investment protection law by using tools of economic contract theory. Contract theory has been applied to international trade law, but investment law has not yet been analyzed under this methodology. International Investment Agreements may be interpreted as a mechanism for overcoming commitment problems between investor and host state in order to generate mutual benefits. States trade credibility for sovereignty as international investment law restricts the regulatory conduct of states to an unusual extent, subject to control through compulsory international adjudication. A well-known problem in contract theory is how to deal with uncertainty. Changing conditions are a prevalent characteristic in investment law. Contract theory finds that too strict and inflexible contracts may impair the joint surplus of the contracting parties. Thus, a trade-off arises between ex ante commitment on the one hand and flexibility ex post in order to uphold the efficiency of the contract on the other. Those problems become virulent in unforeseen crises, such as financial or economic ones. This article analyzes commitment and flexibility mechanisms in international investment protection law and proposes to use similar mechanisms as in WTO law to design more optimal contracts.

Revitalizing the US Trade Agenda in Latin America: Building on the FTA Platform

Gonzalez, A. — 2009-06-05

The United States has invested heavily in the negotiation, approval and implementation of Free Trade Agreements (FTAs) with 12 countries in the Americas. This existing FTA platform should be the starting point to build a more enduring economic engagement with the region, one that would enhance the market-based opportunities that have allowed for the creation of a middle class in Latin America. This group is essential not only to reduction in poverty and inequality but also to political stability and support for democracy. The FTA platform can and should be improved and revitalized through a new trade policy aimed at (i) extending the current platform by finalizing pending FTAs and providing for its potential expansion in the future, (ii) making the FTA platform fully operational, (iii) integrating all of the pieces of the FTA platform into a unified whole, (iv) expanding the universe of those who benefit from the FTA platform while minimizing transitional costs and (v) strengthening the foundations on which the FTA platform is based. Trade is a key component of the relationship with these countries. The Obama Administration must seize the opportunity to lead the revitalization of the US partnership with the region.

International Trade in Services and Domestic Regulations: Necessity, Transparency and Regulatory Diversity. By PANAGIOTIS DELIMATSIS

Honeck, D. — 2009-06-05

The World Trade Organization: A Legal and Institutional Analysis. By JAN WOUTERS and BART DE MEESTER

Bradford, A. — 2009-06-05

Introduction to Volume 12, 2009

The Editors — 2009-03-20

Challenges Ahead in International Economic Law

Cottier, T. — 2009-03-20

Trade versus Culture in the Digital Environment: An Old Conflict in Need of a New Definition

Burri-Nenova, M. — 2009-03-20

Following the recent UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, the first wave of scholarly work has focused on clarifying the interface between the Convention and the WTO Agreements. Building upon these analyses, the present article takes however a different stance. It seeks a new, rather pragmatic definition of the relationship between trade and culture and argues that such a re-definition is particularly needed in the digital networked environment that has modified the ways markets for cultural content function and the ways in which cultural content is created, distributed and accessed. The article explores first the significance of the UNESCO Convention (or the lack thereof) and subsequently outlines a variety of ways in which the WTO framework can be improved in a ‘neutral’, not necessarily culturally motivated, manner to become more conducive to the pursuit of cultural diversity and taking into account the changed reality of digital media. The article also looks at other facets of the profoundly fragmented culture-related regulatory framework and underscores the critical importance of intellectual property rights and of other domains that appear at first sight peripheral to the trade and culture discussion, such as access to infrastructure, interoperability or net neutrality. It is argued that a number of feasible solutions exist beyond the politically charged confrontation of trade versus culture and that the new digital media landscape may require a readjustment of the priorities and the tools for the achievement of the widely accepted objective of cultural diversity.

How Much Credit for Export Credit Support Under the SCM Agreement?

Coppens, D. — 2009-03-20

This contribution examines the degree of policy space the WTO leaves its Members to support export credits for non-agricultural goods. In the light of existing case law, it illustrates that export credit support offered by export credit agencies that aims at complementing the private trade finance market would in principle be prohibited under the SCM Agreement. However, while some low-income countries can rely on a specific exception on the prohibition on export subsidies, all WTO Members can, on the basis of the Illustrative List of Export Subsidies, justify certain subsidized export credits that are in accordance with the interest rate provisions of the OECD Arrangement. But, as the case law and the OECD Arrangement currently stand, subsidized export credit guarantees and insurance as well as subsidized short-term export credits cannot rely on this safe haven. Hence, the article shows that export credit agencies, except for those of some low-income countries, cannot play a complementary role to the private market in offering such support. Moreover, this contribution demonstrates that export credit support in accordance with the safe haven might still be countervailable and actionable. Finally, it is argued that an exception which can be modified by a subgroup of WTO Members, like the safe haven, can no longer be accepted.

The Forest for the Trees: A Roadmap to Canada's Litigation Experience in Lumber IV

Quayat, D. — 2009-03-20

The ongoing feud over the export of Canadian softwood lumber to the US is likely one of the most litigated trade disputes in history. In April 2001, the fourth round of the lumber dispute commenced. The ensuing five-and-a-half years featured a number of cases being filed before panels constituted under the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO), as well as, for the first time, US domestic courts. During the summer of 2006, as with the two rounds of the dispute immediately before it, Canada and the US negotiated a settlement. This article presents a broad overview of the softwood lumber dispute and examines what was accomplished in the Lumber IV litigation. It explores the decisions rendered by NAFTA and WTO panels, as well as the historic foray by Canadian parties into the US courts. It also analyses lessons learned from the softwood lumber litigation, and the potential applicability of these lessons to other complex trade disputes.

Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures

McGrady, B. — 2009-03-20

The recent decisions of the panel and Appellate Body in Brazil – Measures Affecting Imports of Retreaded Tyres touched upon a number of issues of ongoing significance to the application of necessity tests, such as those in Article XX of the General Agreement on Tariffs and Trade. This article argues that the dispute represents a mixed outcome for the application of necessity tests. The express recognition that some regulatory measures are complementary to one another rather than reasonably available alternatives constitutes a welcome step forward. On the other hand, the panel's characterization of Brazil's regulatory goal highlights an approach common to a number of panel reports that could justify a perception of arbitrariness in application of necessity tests. Similarly, comments made by the Appellate Body to the effect that a panel is obliged to consider the importance of a state's regulatory goal extend the role of a panel in an unjustifiable manner.

Eighth Annual WTO Conference: An Overview

Van Damme, I. — 2009-03-20

WTO Dispute Settlement 1995-2008--A Statistical Analysis

Leitner, K., Lester, S. — 2009-03-20

The WTO Appellate Body's Activities in 2008

2009-03-20

Book Survey 2008

Raisch, M. J. — 2009-03-20

Website Survey 2008

Raisch, M. J. — 2009-03-20

Bibliography on WTO Dispute Settlement:Volumes 1-11 (1998-2008)

Grando, M. T. — 2009-03-20

Subject Index to Volumes 1-11(1998-2008)

2009-03-20

Author Index to Volumes I-II (1998-2008)

2009-03-20

Editorial Structure

2009-03-20

Introduction to the Mini-Symposium on Transparency in the WTO

Steger, D. P. — 2008-11-18

NGO Involvement in the WTO: A Comparative Perspective

Van den Bossche, P. — 2008-11-18

This article examines the nature and the extent of the involvement of non-governmental organizations (NGOs) in the activities of the World Trade Organization (WTO). First, it looks at the arguments for and against NGO involvement in WTO activities. Next, the article discusses the legal basis for the involvement of NGOs in WTO activities and the various forms of involvement provided for. It compares the position of NGOs in the WTO with their position in other international organizations, in particular, the United Nations. Subsequently, the article explores the practice of WTO engagement with NGOs. Finally, it examines and compares the rules and procedures of the WTO and the United Nations for the selection of the NGOs with which to engage. This article concludes that a more open and engaged dialogue with civil society will make the WTO a more transparent and responsive organization, enjoying greater support among the general public in developed as well as developing country Members. Justified concerns about the legitimacy, accountability, and politics of NGOs could be eliminated, or at least mitigated, by introducing a system of accreditation in the WTO. While NGO involvement in the WTO definitely has its limits, the involvement of NGOs in other international organizations, in particular, the United Nations, suggests that these limits have not been reached as yet.

Institutionalizing Public Participation in WTO Decision Making: Some Conceptual Hurdles and Avenues

Bonzon, Y. — 2008-11-18

This article assesses the potential of institutionalizing more structured mechanisms of public participation in the World Trade Organization (WTO) decision making. It begins by developing a conceptual framework that distinguishes the four ‘implementation parameters’ of public participation: the goal, the object, the mechanisms, and the actors. Most proposals for more formalized public participation in the WTO view it as a way to mitigate an alleged legitimacy deficit in WTO decision making. This article questions the relevance of this goal. Turning to the object of participation, the article examines the institutional structure of the WTO and points to challenges in identifying those decisions, mostly pertaining to the elimination of nontariff barriers to trade, that should be opened to public participation. ‘Sensitive’ decisions are mostly reached by the dispute settlement bodies, sometimes by reference to rules adopted outside the institutional framework of the WTO. It is argued that the adoption processes of these external rules are a relevant object of public participation in the WTO context. Finally, administrative review of these adoption processes by the panels and Appellate Body as a mechanism to regulate public participation is considered.

From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance

Ala'i, P. — 2008-11-18

The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947–94), Article X was a silent provision dismissed by GATT panels as ‘subsidiary’ to the other ‘substantive’ provisions of the GATT. Since the creation of the WTO, Article X has emerged from obscurity, and is now viewed as creating obligations of ‘fundamental importance,’ such as transparency and due process. In addition, there has been an exponential increase in the number of cases asserting Article X claims before WTO panels and the Appellate Body. The resulting treatment of such claims by the WTO dispute settlement bodies reflects both the emerging role of the WTO as a supranational administrative body and the continuing discomfort of panels and the Appellate Body with applying good governance obligations.

Selective Adaptation of WTO Transparency Norms and Local Practices in China and Japan

Biukovic, L. — 2008-11-18

This article focuses on the importance of Chinese and Japanese local practices, their regulatory infrastructure and local cultural norms related to transparency as factors in the selective adaptation of the World Trade Organization norms. International laws can acquire a variety of local meanings that require an understanding of the local history and culture in addition to knowledge of the local economy and laws. This article analyzes the selective adaptation paradigm, which allows for a determination of the extent to which noncompliance or less than full compliance can be attributed to the cultural particularities of states political factors such as the relationship between the central and local authorities. This article argues that a shift in perception of regulatory transparency norms in China and Japan has occurred, and that this shift has had important economic and political consequences internally and externally, which has brought about significant administrative law reforms and improved compliance with international norms.

Judging Judges: From 'Principal-Agent Theory' to 'Constitutional Justice' in Multilevel 'Judicial Governance' of Economic Cooperation Among Citizens

Petersmann, E.-U. — 2008-11-18

How should citizens evaluate the ever more important case law of international economic courts and their sometimes inadequate responses (e.g. by investor-state arbitration) to ‘the governance gaps created by globalization (which) provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation’?¹ Section I recalls that the customary law requirement (as codified in the Vienna Convention on the Law of Treaties) of settling ‘disputes concerning treaties, like other international disputes, ... in conformity with the principles of justice and international law’, including ‘universal respect for, and observance of, human rights and fundamental freedoms for all’ (Preamble VCLT), reflects the constitutional functions of courts to interpret and apply law in conformity with ‘rule of law’, justice and human rights as constitutional restraints on the ‘rule of men’ and their ‘rule by law’. Section II explains why some of the governance problems of the World Trade Organization (WTO) are due to power-oriented conceptions of ‘principal-agent’ relationships as ‘member-driven governance’ without regard to the constitutional functions of WTO bodies to provide collective public goods with due respect for citizens as ‘democratic principals’. Sections III and IV recall how the European Court of Justice (ECJ), the European Court of Human Rights (ECtHR) and the European Free Trade Area (EFTA) Court developed diverse ‘constitutional methods’ of interpreting treaties among European states as ‘constitutional instruments’ protecting fundamental freedoms and social rights of European producers, investors, traders and consumers. Sections V and VI argue that the worldwide context of international economic law (IEL) differs from multilevel European constitutionalism and requires WTO and North American Free Trade Agreement (NAFTA) dispute settlement bodies and investor-state arbitral tribunals to exercise more judicial deference and respect for the diversity of constitutional principles in WTO Members and their regulatory discretion. Section VII concludes that national, regional and worldwide economic courts should promote common conceptions of rule of law and ‘constitutional justice’, following the ‘solange method’ of multilevel cooperation among national and international courts in Europe, in order to protect transnational ‘rule of law communities’ for mutually beneficial economic cooperation among citizens across frontiers.

From 'Direct Effect' to 'Muted Dialogue': Recent Developments in the European Courts' Case Law on the WTO and Beyond

Bronckers, M. — 2008-11-18

Recent case law suggests that the European courts are rethinking their position in respect of international law. On the one hand, the European Court of Justice (ECJ) is extending its case law on the WTO, denying ‘direct effect’ to all of its provisions, to other major international treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS). In another recent judgment, the ECJ firmly said that it will not allow international agreements to jeopardize Europe's constitutional principles. These judgments might suggest that the ECJ is becoming more cautious, even skeptical toward international law. On the other hand, the WTO case law also illustrates that the ECJ has found more subtle ways than direct effect to give domestic law effect to international agreements. Examples are treaty-consistent interpretation, judicial dialogue with international tribunals, and transformation of international law into European legal principles. In this way, the ECJ is able to show respect to international law, which is indeed a core European value. At the same time, the ECJ maintains the power to act as a gatekeeper and resist those international legal norms that are considered inimical to the European legal order. On the whole the author welcomes this case law, albeit with some critical notes.

Saving the WTO from the Risk of Irrelevance: The WTO Dispute Settlement Mechanism as a 'Common Good' for RTA Disputes

Gao, H., Lim, C. L. — 2008-11-18

Over the past few decades, Regional Trade Agreements (RTAs) have proliferated globally. Such proliferation of RTAs created a renewed sense of urgency for the WTO to take action in order to avoid the fate of being eclipsed into irrelevance. There are several options for coping with the challenge. Theoretically speaking, the best approach would be to heighten the level of ambition in global trade talks to reduce all trade barriers to zero so that the discriminatory effect created by RTAs could be reduced or even eliminated. In reality, such an approach would be impossible for well-known reasons. The next best option would be for the WTO to draft ‘best practices’ or model RTAs to minimize the effect of further fragmentation created by different breeds of RTAs. The problems with this approach are first the resource constraints of the WTO, second the bounded rationality of human beings, and third, whether a ‘one size fits all’ approach would work. Yet another option offered is to strengthen the WTO's monitoring system of RTAs, with the 2006 rules on transparency being the most recent example. Unfortunately, as the Committee on RTAs (CRTAs), the main enforcer of the monitoring rules in the WTO, has been plagued with ineffectiveness because of the consensus rule, heightened monitoring rules would not be of much help either. In this article, we will discuss a fourth option, i.e. to use the WTO dispute settlement mechanism as a venue for resolving RTA disputes. The rationale underlying this initiative is that, by using the WTO dispute settlement system for RTA disputes, the Members will be able to develop a body of ‘common law’ on RTAs, which would then either form the basis of multilateral rules on RTAs or harmonize RTAs. This way, we can try to minimize the harmful effect of RTAs, and indeed turn RTAs from ‘stumbling blocks’ into ‘building blocks’ of the multilateral trading system.

Rethinking TRIPS: 'Adequate Remuneration' for Non-voluntary Patent Licensing

Taubman, A. — 2008-11-18

Driven by concerns about access to medicines, the World Trade Organization (WTO) Doha Declaration on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and Public Health and ensuing negotiations to amend the TRIPS Agreement, clarified and extended the international law governing compulsory licenses and government use for pharmaceutical patents. But this process left open the question of how to determine the ‘adequate remuneration’ payable when these measures are used. This article reviews this question in the light of guidance provided by the law and practice of WTO dispute settlement, and a broader legal and policy context, including the law of human rights and the law of investment. But this narrow issue also sheds light on the general character of WTO/TRIPS as a trade law regime within the broader context of international law. If the essential objective of trade law is to settle trade disputes guided by agreed standards on what constitutes a reasonable opportunity for legitimate competition, the law governing adequate remuneration for compulsory licensing shows how specific IP rules can be reconciled with trade law at the level of basic principle.

Coping with SPS Challenges in India: WTO and Beyond

Das, K. — 2008-11-18

The Agreement on the Application of Sanitary and Phytosanitary Measures (SPSA) was negotiated with a view to setting in place an array of multilateral rules that would, on the one hand, recognize the legitimate right of WTO Members to adopt sanitary and phytosanitary (SPS) measures necessary to protect human, animal, or plant life or health, and on the other, enshrine certain checks and balances to cope with the possibility of these measures emerging as non-tariff barriers (NTBs). However, the experiences of developing countries including India with SPS requirements imposed particularly by the developed countries bear testimony to the fact that SPSA has thus far proved rather ineffective in living up to the latter objective. This is largely attributable to the fact that, its dual objective notwithstanding, SPSA has left considerable ‘space’ for WTO Members to use SPS measures for protectionist purposes under the guise of their ‘legitimate’ concerns. This ‘space’ seems to have been further reinforced by the mode of interpretation of SPSA by the WTO Dispute Settlement System. Written against this backdrop, the present article brings to the fore some of the key SPS challenges facing the developing countries by taking India as a case in point and explores certain plausible strategies to cope with such challenges in an effective manner.

Public Access to Dispute Settlement Hearings in the World Trade Organization

Ehring, L. — 2008-11-18

In 2005, the first dispute settlement panels of the World Trade Organization (WTO) decided that the public could observe their oral hearings. Following three years of panel practice with open hearings where both parties requested public access, the Appellate Body in 2008 followed suit and held its first open hearings. Most people had believed this to be impossible without modification of the WTO Agreement, and WTO Members were far apart regarding the desirability and legality of open hearings. This controversy persists, but it has changed considerably, based on the entirely successful experience of open hearings to date, which has already prompted several WTO Members to change their position. The new practice is a historic and irreversible shift from sixty years of Practice under the General Agreement on Tariffs and Trade (GATT) and in the WTO. It is also remarkable given the importance of allowing public observation of judicial hearings, as it exists across the world both domestically and internationally. More than a quarter of WTO disputes currently have public hearings, and the future practice is likely to consolidate the trend. No political fallout has occurred so far, as it did on amicus curiae in 2000. This is also unlikely to happen in the future, which will tell whether WTO Members can find agreement on codifying rules on transparency. Already now, justice is not only done at the WTO, but it can also be seen to be done.