WTO Dispute Settlement Understanding and Development

by Mervyn Martin

Overview

This book examines the effectiveness of the WTO DSU in pursuing the developmental objectives of the WTO. Unregulated globalisation enabled developed countries to benefit more from the process.

International trade theories emphasise on welfare enhancement and influenced the development of international trade cooperation. However, its development during the colonial era emphasised on protection of colonial interests.

The WTO was meant to emphasise on a strengthened dispute settlement mechanism to support its diverse membership. It has failed to achieve this due to weak mechanisms for promoting developing country participation.

The DSU review based on the draft negotiating proposal from the DSB reflects the on-going weakness of the DSU in pursuing developed country interests whilst ignoring major problems faced by developing countries in using the DSU. Five major issues in relation to the DSU are identified in this investigation. However, the Chairman’s text in no way addresses any of these.

Product Details

ISBN-13:	9789004227804
Publisher:	Brill Academic Publishers, Inc.
Publication date:	01/15/2013
Series:	Nijhoff International Trade Law Series , #13
Pages:	362
Product dimensions:	9.40(w) x 6.20(h) x 1.00(d)

About the Author

Mervyn Martin, LLD (2011), Vrije Universiteit Brussel, is a Senior Lecturer in Law at Teesside University. He has published many articles on international economic law and has a special interest in the developmental dimension of international trade.

Table of Contents

Acknowledgements ix

Table of Cases xi

Table of International Treaties xvv

List of Abbreviations xvii

Introduction 1

1 Globalisation 3

1.1 Definition of Globalisation 3

1.2 The Origins of Globalisation 4

1.3 Dimensions of Globalisation 6

1.4 Theoretical Bases of Globalisation 7

1.5 The Major Issue with Globalisation 9

1.6 The Impact of Globalisation on Development 12

2 The Regulation of International Trade: The Multilateral System; Theories, Qualifications, History and Objectives 19

2.1 Theories 21

2.2 Qualifications to Free Trade 28

2.3 History 31

2.4 Format of the International Trade Organisation (ITO) Negotiations 35

2.5 The GATT Negotiations 42

3 The Uruguay Round Agreements 55

3.1 Special and Differential Treatment 66

3.2 Preferential Trade Agreements: The Generalised System of Preference 71

3.3 China's Accession 77

3.4 Tariff Related Problems 80

3.5 Agriculture 80

3.6 Textiles and Clothing 82

3.7 Concerns Regarding Rule Making Developments in the WTO 82

3.8 Governance/Staffing Policy 84

3.9 Future Negotiations; the Doha Round 86

4 Dispute Settlement in the GATT 1947 and the WTO 95

4.1 The Underlining Intentions of Members in Negotiating the DSU 96

4.2 Innovations under the WTO Agreement 1994 99

4.3 Developing Country Usage of the WTO DSU 100

4.4 Access 108

4.5 Capacity 115

4.6 Willingness to Utilise 123

5 DSU Review 125

The Attitudes Towards the Interests of a Segment of Members 128

The Stand Alone Approach in Relation to the DSU Review not Being Part of the Single Package Approach 129

The Diversity of the Issues in Relation to the Diversity of Member Interests 129

Matters Covered in the Chairman's Text 130

5.1 Strengthening of Notification Requirements for Mutually Agreed Solutions 130

5.1.1 Notification Requirements for Mutually Agreed Solutions 130

5.1.2 Developing Countries and MAS 132

5.2 Improved Conditions for Members Seeking to be Joined in Consultations 133

5.2.1 Developing Countries 133

5.2.2 Timeframe Extensions for Consultations 134

5.2.3 Joint Consultations 136

5.2.4 Lapse of Request of Consultation 137

5.3 Reduction in Timeframe for Establishment of Panel 138

5.4 Special and Differential Treatment for Developing Countries in Relation to Panel Composition 139

5.5 Enhancement of Third Party Rights 141

5.6 Panel Procedures 149

5.6.1 Working Procedures 149

5.6.2 Deadlines 149

5.6.3 S&D in Panel Procedures 154

5.6.4 Suspension of Proceedings 156

5.6.5 Termination of Panel Process 158

5.7 Panel Interim Review 159

5.8 Appellate Review 162

5.8.1 Composition and Appointment 162

5.8.2 Right of Appeal: Third Parties 169

5.8.3 Information in Notice of Appeal 170

5.8.4 Timeframe for the Appellate Process 172

5.8.5 Remand 174

5.8.6 Confidentiality of Communication with the AB 177

5.9 Surveillance of Implementation of DSB Recommendations and Rulings 178

5.9.1 S&D 178

5.9.2 Timeframe for Notification of Intent to Implement 179

5.9.3 S&D in Determining RTP in Arbitration 180

5.9.4 Dispute on Implementation 181

5.9.5 Status Reporting on Implementation of DSB Recommendations and Rulings 182

5.9.6 Determination of Compliance 183

5.10 Compensation and Suspension of Concessions (Retaliation) 185

5.10.1 Sequencing between Article 21(5) Panel and Request for Arbitration on Level of Nullification and Impairment 185

5.10.2 Sequencing and Timelines for Consultations and Compensation and Request for Retaliation 186

5.10.3 Sequencing and Timelines for Authorisation of Retaliation 187

5.10.4 Indicative List of Concessions Sought to be Suspended 188

5.10.5 Reporting of Measures Undertaken in Relation to Retaliation 189

5.10.6 Request for Withdrawal of Authorisation to Retaliate 189

5.11 S&D of Legal Experts for Developing Countries 191

5.12 Litigation Costs 191

5.13 Panel Working Procedures 198

Matters of Developing Country Interest not Addressed in the Chairman's Text 200

Incentive for Compliance 200

5.14 Compensation and Retaliation 202

Compensation 202

Retaliation 203

5.14.1 Mandatory Compensation 209

5.14.2 Suspension of Voting and Use of DSU Rights 210

5.14.3 Carrousel Retaliation 210

5.14.4 Collective Retaliation 211

5.14.5 Tradable Retaliatory Rights 212

5.14.6 Cross Retaliation 212

5.14.7 Interim Measures 213

5.14.8 Indemnity 214

5.14.9 Calculation of Nullification and Impairment 215

5.14.10 Financial Compensation 215

5.15 External Transparency 219

5.16 Authoritative Interpretation 227

5.17 Ambiguity of Conformity 234

6 Conclusion 239

Appendix 1 247

Appendix 2 323

Bibliography 325

Index 341