The WTO Dispute Settlement System, 1995-2003

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Federico Ortino, Ernst-Ulrich Petersmann
Kluwer Law International B.V., 2004 M01 1 - 607 páginas
In its ten years of existence, the World Trade Organization (WTO) dispute settlement system has continued to differentiate itself in many ways from more conventional international judicial proceedings such as those before the International Court of Justice (ICJ) or regional integration courts. The regular participation of third parties, the emphasis at all levels of the ?ordinary meaning? of the text of WTO rules, and the raft of proposed amendments to the Dispute Settlement Understanding (DSU) all characterise WTO jurisprudence. In twenty-six incisive contributions, this book covers both the ?legislative? and ?(quasi) judicial? activities encompassed by the WTO dispute settlement system. Essays concerned with rules emphasise proposed improvements and clarifications in such areas as special and differential treatment of less-developed countries, surveillance of implementation, compensation, and suspension of concessions. Other contributions discuss such jurisprudential and practical issues as discrimination, trade-related environmental measures, subsidies and countervailing measures, and trade-related intellectual property rights. The authors refer frequently to the panel, Appellate Body and arbitration reports, a chronological list of which appears as an annex. The contributors include WTO arbitrators, members of the WTO Appellate Body, WTO panelists, and academics from a broad spectrum of countries engaged as legal advisers by the WTO, by governments, or by non-governmental organisations. More than a mere snapshot of the current status of the WTO dispute settlement system, this outstanding work represents a comprehensive analysis that brings a fast-moving and crucially significant body of international law into sharp focus.

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Contenido

The Importance of International Organizations for Rule of Law
5
Chapter
8
Proposals for Reforms of Article 22 of the DSU
11
PROPOSALS FOR IMPROVING THE WORKING PROCEDURES
19
Ideas and Proposals Submitted
32
Judicialization of the Appellate Body?
45
Article 21 3 Arbitrations on Reasonable Period of Time
59
Suspension of Concessions and the Renegotiation of Remedies
69
BARTELS
263
Burden of Proof
271
How the SPS and TBT Agreements Came to Exist
277
Invoking the Disciplines of SPS TBT and the GATT
326
Conclusion
340
E OPUKU AWUKU
341
Conclusion
377
The Likeness Problem
394

Chapter 7
75
Conclusion
85
ADDITIONAL NEGOTIATION PROPOSALS ON IMPROVEMENTS
91
Is There a Need for Improvements and Clarifications of the Mandate
97
Policy Conclusions 15
99
REFLECTIONS ON THE PROCESS OF CLARIFICATION
105
Conclusion
113
Review of the Chairmans Text of 28 May 2003
121
Conclusion
139
PART II
151
Facing the Challenges of Practice
159
Brief Concluding Remarks
176
Lessons from International Adjudicatory Bodies
182
Inherent Powers of the AB?
189
GATT Article XI The Ban on Quantitative Restrictions
200
Other GATT Articles
208
Chapter 16
217
The National Treatament Principle and the Prohibition of Material
231
Brief Conclusion
262
Conclusions on the MFN and National Treatment Principles Applied
416
Decided Cases
422
Process Matters
441
NonViolation Nullification or Impairment in TRIPS
449
Chapter 23
455
Appeal Cases under the TRIPS
465
Chapter 24
475
The Developing Condition of a Member in the Dispute Settlement
482
Problems and Reform
493
Chapter 25
499
Method of Interpretation
508
The Panel Structure
519
Conclusions
529
Ways of Dispute Settlement
538
Overview of the WTO Agreements Invoked in Disputes
544
State of Implementation of the Rulings of the DSB
550
Report by the Chairman of the Special Sessions of the DSB to
579
Index
599
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